Presidential Criminal Immunity: A Rule-of-Law Threat Beyond the Oval Office

In Trump v. United States, a six-justice majority of the Supreme Court created a pair of new presidential immunities from criminal prosecution, supplemented with additional broad new evidentiary barriers. These newly minted immunities, which directly inhibit criminal indictment or conviction of the president, are also likely to cast a shadow on the prosecution of subordinate officials, not least as a consequence of new evidentiary rules of uncertain breadth. The Court’s majority, in an opinion written by Chief Justice John Roberts, justified the decision’s breadth by appealing to the consequences of immunity or its lack. Strikingly absent from the opinion were the kinds of textual and originalist materials with which the Roberts Court is often associated. (That the leading originalist work on immunity is at odds with the Court’s conclusion perhaps explains this lacuna. If nothing else, the immunity decision is a reminder that the conservative justices are fair-weather originalists.)

But do the consequentialist foundations of the immunity decision stand up to scrutiny on their own terms? To date, attention has focused on the specific, and narrower, question of whether subordinate officials can still be prosecuted. But the question of subordinate exposure to criminal liability does not fully capture the implications of the scope of the immunity decision—or at least so I have argued in a forthcoming article. Both the costs and the benefits of exorbitant presidential immunity of the kind created by the Supreme Court are more complex than that.

It is therefore worth stepping back and reflecting on the many complex ways in which such immunity radiates through the executive branch as a whole, seeping into the legislature and the general public. Viewed in the wider institutional contexts of the executive branch at large or the partisan-political environment of electoral competition, it becomes apparent quickly that there are both costs and benefits to immunity—but that the costs are of a scale and seriousness that far outweigh the benefits.

The Presidency as a Person and as an Institution

The immunity decision considers the president as an individual and largely ignores the institutional context in which the president operates. In a key passage, Robert warns of the risk that Congress will “criminalize the president’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution,” such that a president would refrain from “bold and unhesitating action.” Because the Court conceptualizes the president as an individual, it is naturally concerned with the psychological effect on the president of liability risk. Similarly, the majority’s logic rests substantially on a 1974 decision in Nixon v. Fitzgerald, which concerned presidents’ immunity from tort actions in their individual capacity, and not their liability to suit in their official capacity for injunctive or declarative relief.

But the president does not sit alone in magnificent isolation. Rather, the president bestrides one of the world’s largest government bureaucracies, commanding deep reservoirs of expertise (somewhat shallower of late, to be sure) and coercive violence. Under the U.S. Constitution, moreover, the president is integrated—not isolated—from the other branches of government through the office’s role in legislation, treaty-making, and appointments. And of course, the president stands often as the de facto head of a national political party whose members sit in federal and state offices. It would be startling if a policy that reshaped the president’s working environment did not spill over into other parts of the executive and beyond.

The Putative Gains of Presidential Immunity

The Court’s consequence-focused case for immunity’s benefits turned upon the anticipated risk that politicized prosecutions would undermine the president’s incentives to engage in energetic law-administration. Indeed, the Court imagined that “enterprising prosecutor[s]” would be swept up in a “cycle of factional strife,” and that presidential prosecutions would become “routine[].” The evidence for this prediction, however, is thin.

Focus on just one element of the Court’s logic: the idea that the rate of partisan prosecutions could and would increase dramatically without presidential immunity. It is hard to see why this would be so given the substantive, ex ante limits on prosecutorial action, and the ex post checks on partisan motives. A first set of limitations come directly from the Constitution. The First Amendment’s Speech Clause prohibits “government officials from subjecting an individual to retaliatory action, including criminal prosecutions, for speaking out.” Speech on matters of “public concern” gets the greatest constitutional protection. This constitutional shield against political prosecutions is supplemented by generally applicable ethical rules and department-specific guidelines. The Model Rules of Professional Conduct also impose heightened obligations on prosecutors, including the duty to refrain from prosecuting charges they know are not supported by probable cause, and to avoid conflicts of interest. Within the federal government, the Department of Justice’s Justice Manual categorically prohibits consideration of a potential defendant’s “political association, activities, or beliefs” in determining whether to commence or recommend prosecution or take any other action against a person.” The manual further bars prosecutors from “select[ing] the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election.” Since 1978, memoranda from the attorney general have limited communications between prosecutors and the White House. In 2020, then-Attorney General William Barr instituted additional election-related rules for candidates for the presidency or Congress, their campaigns, and their staff. While these rules would not cover all former presidents, they would apply to those who lose an election and later decide to run again for public office.

Given these overlapping substantive constraints on prosecutorial choice, why assume that an “enterprising prosecutor” can and will be swept up in “factional strife”? Why, that is, would all of these ethical, regulatory, and constitutional checks on U.S. attorneys suddenly fail? It is especially odd for the Court to assume that constitutional law as such has no motive force. Indeed, notice that if the empirical premise of the majority’s argument for immunity holds, that immunity is a terrible idea: That is, if the majority was correct that the executive branch was prone to reckless disregard of the law, then its embrace of presidential immunity from criminal prosecution seems troubling, even perverse. For if senior executive-branch officials cannot be trusted to follow the law when they act as prosecutors (that is, in a subset of federal action), then surely it is unwise—even extremely hazardous—to remove the backstop of criminal prosecution across the board. The Court’s own logic here is thus self-defeating.

In any case, if there is indeed a concern that prosecutors have too much dangerous discretion despite this tight mesh of constitutional, regulatory, and professional rules, blame must be laid in large part at the justices’ feet. The risk that elected actors (most importantly, the president) will deploy indictments and investigations as a means to harass a predecessor of another party is a result of the Roberts Court’s decisions about Article II of the Constitution. In a series of recent rulings, the Roberts Court has struck down statutory provisions limiting the president’s authority to fire subordinate officials. The immunity decision doubled down on these precedents by talking of the executive branch’s “exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, including with respect to election crimes” as a domain of presidential conduct “absolutely immune” from congressional regulation, judicial oversight, or prosecutions. The risk of abusive federal prosecutorial decision-making may not flow solely from this (highly contestable) constitutional vision—but at the very least the Court must take responsibility for creating favorable conditions for a highly partisan kind of federal prosecutions through its extravagant readings of presidential power.

And having seeded and assiduously fed a hydra-headed font of political prosecutions, the Court should not be permitted to point to its own mistakes as a justification for making new, unwarranted, and legally unanchored moves. Two wrongs, here as on the playground, make no right.

The Heavy Costs of Presidential Immunity

Presidential immunity does not merely shape presidents’ behavior. Its effects cascade. It changes the incentives, and so behavior, of subordinate officials beyond the Oval Office. Precisely how the immunity decision reworks these subordinate incentives, to be sure, depends on how the boundaries of presidential immunity are ultimately fixed by judges. Nevertheless, even discounting for this uncertainty, the opinion is almost certain to push subordinate behavior in undesirably lawless directions.

There are several reasons for this prediction, and I want to unpack just two here. I want to bracket questions of subordinate criminal liability (which, in my view, is unlikely to be a meaningful prospect in any case), and focus on the effects that do not depend on a shadow of criminal liability on inferior officials. The first such dynamic concerns corruption, and the second presidential malfeasance, in particular political self-dealing intended to keep a political coalition in office despite electoral unpopularity.

Take corruption first. Studies of government corruption suggest that there are likely to be links between the formal legal prohibitions on presidential corruption (that is, the application of criminal proscriptions, even if actual prosecutions are generally off the equilibrium path), and the dynamic, self-reinforcing network of informal norms and dispositions that help suppress corruption across the executive branch in the regular course of things. In other words, the mere existence of laws against presidential corruption helps maintain a culture in which officials are less likely to be corrupt. The immunity decision may thus undermine both formal and informal checks on corruption. The net effect is for corruption to diffuse and to become entrenched across a wider cross-section of the national government—not just in the White House, but far beyond. This effect comes into view only when presidential immunity is located in a larger, dynamic context of the executive branch as a whole, such that its full implications upon subordinate officials are traced out.

This sort of vicious cycle of corruption is hardly an abstract possibility in the United States. Through much of the 19th century, the federal government was marred by high levels of corruption. Shifting the government to a new equilibrium required a range of legal, political, and cultural reforms, none of which were easy. There is no reason to think that the United States today is immune to a regression in this lower-quality state of national governance.

Now consider presidential malfeasance. The immunity decision’s effect on the risk of unlawful acts by the president depends on whether there are alternative mechanisms for checking unlawful presidential behavior. If the immunity decision left in place a plurality of effective checking mechanisms, it would have a relatively small impact at the margin. Lost prosecutions would be offset by increases in enforcement efforts elsewhere. If the immunity decision was the last effectual check on criminal entrenchment, by contrast, no such offsetting dynamic could arise. The expected effect in criminality, as a result, would be much larger because the relative loss of deterrence would be more significant. Chief Justice Roberts’s opinion did not consider this possibility. It thus underestimated the ruling’s marginal effect on deterrence of criminal entrenchment by the president.

The remedial vacuum that the immunity decision creates results in the first instance from impeachment’s general failure as a device for checking official malfeasance against a tide of partisan polarization. In addition, the Court, in Trump v. Anderson, neutered the disqualification provision of Section 3 of the 14th Amendment as a check on presidential malfeasance. Once impeachment and disqualification were cast into desuetude, criminal prosecution was the sole remaining remedy for presidential crimes against the democratic process. Its evisceration in July 2024 leaves a malignant vacancy.

The possibility of criminal liability sustains an equilibrium characterized by norms of legality in which prosecution rarely or never needs to occur. To infer that prosecution is superfluous from the fact that it is rare, therefore, is to misunderstand the systemic logic of deterrence. In other words, the Court’s logic gets the causality backward: Prosecution isn’t rare because presidential influence is uncommon; presidential malfeasance is uncommon (and thus rarely prosecuted) because the threat of prosecution has served as a potent check.

Like political corruption, criminal self-entrenchment is limited on a practical, day-to-day basis by a culture of beliefs, expectations of others, and dispositions toward legality and democracy that are held in common by officials. Informal norms, not indictments, necessarily underpin the general culture of legality across the extensive institutional landscape of the federal government. These dispositions and internalized expectations of appropriate conduct are not imposed by diktat. They must emerge organically.

This is not just a theoretical supposition: There is ample evidence that a culture of legality indeed permeates many of the executive branch’s agencies and departments. For example, the reason that the Federal Reserve does not routinely adjust interest rates to favor the incumbent president is the strong norms of professional expertise among the members of the Federal Open Market Committee. The reason political opponents are not routinely harassed by vindictive presidents (at least until this January) is (or was) the strong norms of professionalism within the Department of Justice.

Consider, by way of example, the end game of Richard Nixon’s presidency, triggered by the June 1972 break-in at the Democratic National Committee headquarters at the Watergate complex in Washington, D.C. The break-in triggered congressional and criminal investigations, including the appointment of a special counsel. At two points in the ensuing complex series of events, informal norms worked as a severe and effective brake on Nixon’s efforts to prevent the disclosure and sanctioning of criminal entrenchment. First, multiple Justice Department lawyers resigned rather than accede to Nixon’s request to fire the special counsel, an event that later came to be known as the “Saturday Night Massacre.” Their resignations catalyzed considerable public discontent and accelerated talk of impeachment.

Second, Nixon’s ultimate resignation from office was precipitated by the insistence of his fellow Republicans on the importance of legality, and not the immediate prospect of a punitive sanction. Thus, in August 1973, Sen. Barry Goldwater (R-Ariz.) and a group of Republican leaders met with Nixon to tell him that his support in the House and Senate had collapsed. Informal norms of legality predisposing Nixon’s partisan allies toward a respect for the criminal law hence were a key element of the mechanism by which Nixon was pushed from office. In the Nixon case, these norms shaped not just the executive but also the beliefs and dispositions of elected representatives.

The strength of informal norm-based constraints on criminal entrenchment ultimately turns upon the existence of formal, criminal-law constraints on official action. Without the specter of criminal sanctions, informal norms cannot be sustained. According to accounts of the Nixon resignation, the Justice Department lawyers and the Republican delegation led by Goldwater were motivated by a belief that Nixon had violated the law. That is, the existence of a criminal-law violation loomed large in their calculations. While the counterfactual is hard to prove, it seems unlikely that either Goldwater or the Justice Department lawyers would have resisted Nixon so effectively had they believed his actions to be lawful. To the contrary, as in the corruption context, there is every reason to anticipate that the sight of unpunished apex criminality has a cascade effect—undermining officials’ beliefs and dispositions toward legality across the executive branch.

Conclusion

The judicial innovation of presidential immunity from criminal prosecution rested upon consequentialist grounds. For a majority of the Court, it appeared to be justified by the large costs of political prosecution; the benefits of warranted indictments seemed worth foregoing. Once we shift the analytic lens from the person of the president to the larger context of the executive branch, though, it becomes clear that matters are not so simple. Viewed in this wider context, the benefits of immunity are far more meager than the justices allow—and in large part arise out of recent doctrinal changes the justices themselves have made. In contrast, immunity’s costs are substantial. These come into view, however, only through an appreciation of how the formal prohibitions of the criminal law are entangled with the informal constraints generated through norms, beliefs, and dispositions. Put these findings together, and the conclusion is clear: Presidential immunity is a democratic catastrophe.