The Supreme Court has never squarely resolved whether a president’s in-term conduct is immune from criminal prosecution because, before Donald Trump, there were no indicted ex-presidents.
But there are four such indictments now, including Special Counsel Jack Smith’s prosecution in Washington, D.C. — a case built around Mr. Trump’s fraudulent attempt to subvert the 2020 election and extend his presidential term. On Wednesday, the Supreme Court decided to review a decision from a panel of the U.S. Court of Appeals for the District of Columbia Circuit, which rejected Mr. Trump’s claim of presidential immunity in an opinion that was thorough and unanimous.
The Supreme Court’s decision to hear the case means that Mr. Trump’s trial remains in limbo — and the timing of proceedings will likely impact the 2024 presidential election.
All short-term politics aside, the Supreme Court confronts an extraordinary question of American governance: Are ex-presidents immune from prosecution for in-term conduct? And, if so, how much immunity do they have?
Mr. Trump lost badly in the D.C. Circuit, and the margin of that defeat reflects the underlying weakness of his immunity arguments. That very weakness that might tempt the Supreme Court to say too little about the existence and scope of presidential immunity.
That temptation is unfortunate because American democracy is entering a perilous period of extreme polarization — one in which less malfeasant presidents may face frivolous, politicized prosecutions when they leave office.
Many justices profess to be minimalists, deciding only the case in front of them. But for the good of the country, the Supreme Court should use Mr. Trump’s case to announce a narrow presidential immunity. Mr. Trump would flunk any immunity standard, but the court should announce a standard nonetheless.
The easy part of the Supreme Court’s job is to affirm the D.C. Circuit’s decision that Mr. Trump isn’t immunized. He seeks an implausibly broad rule of immunity for any conduct involving “official acts” — no matter their context, the intent behind them or whether they figured in rank criminality. During the January hearing at the D.C. Circuit, Mr. Trump’s lawyer suggested that official acts immunity would cover a president who had ordered SEAL Team 6 to assassinate a political rival.
Official acts immunity does protect former presidents against damages in civil cases, but a foundational premise of the civil case standard is that it’s far too broad for criminal prosecutions.
And even if the Supreme Court embraced an official-acts test, it still wouldn’t bar Jack Smith’s D.C. prosecution. It has already been determined — in a recent decision in a civil case, by a separate D.C. Circuit Court panel — that Mr. Trump’s extramural efforts to remain in office were not “official acts.” The D.C. Circuit opinion now subject to review in the Supreme Court expressly cited Mr. Trump’s failed civil immunity claim as a reason to be “doubtful” that the former president could meet the official acts standard in the criminal prosecution. Mr. Trump was acting as an “officeseeker” rather than an “officeholder,” and the private sphere of office-seeking conduct sits outside the scope of official-acts immunity.
Only the tiniest slice of the indicted conduct could bear a straight-faced description as an “official act” — when Mr. Trump and co-conspirators “attempted to use the power and authority of the Justice Department,” as the indictment puts it, to have the department initiate bogus election investigations and “to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.” Even if the Supreme Court settled on an official acts test, there’s little chance it would preclude the whole prosecution.
Mr. Trump’s prediction of similar indictments against Democrats is a ghastly justification for a needlessly broad presidential immunity. He shouldn’t get immunity just because some ambitious federal prosecutor might, for example, indict Joe Biden for something his son Hunter did.
In a case less entwined with an upcoming presidential election, and at a moment of less national precarity, the Supreme Court might just call it a day after affirming that official acts immunity doesn’t shield Mr. Trump from criminal punishment.
Instead, the Supreme Court should seize this opportunity to develop a narrow presidential immunity in criminal cases. That would prevent frivolous federal prosecutions from becoming a standard political tactic and give judges the tools they need to manage any reprisal to come.
As a practical matter, the standard would primarily set immunity in federal court because presidents have other immunities that protect them from state prosecutions.
For federal prosecutions, the immunity should mark a workable line between the reasonable discharge of essential constitutional functions and a president’s pursuit of personal interest. In other words, presidents ought not go faithfully about core presidential business in a long shadow of criminal punishment. But assuming that criminal liability doesn’t interfere with the president’s constitutional duties, then it’s not clear why a president should be exempt from the criminal law that binds everyone else.
Broad immunity is a clumsy response to the threat of unjustified federal prosecutions. When presidents commit federal crimes, they are — by definition — flouting congressional priorities. The best justification for immunizing former presidents against federal prosecutions is that the charged conduct is reasonably necessary to a core constitutional duty.
Take a popular example involving President Barack Obama’s drone strike order against Anwar al-Awlaki, an American citizen living in Yemen. Mr. Awlaki was an operationally significant hub of Al Qaeda terrorist activity, and the defense community considered him to be an imminent wartime threat. The example isn’t perfect because Mr. Obama ordered the strike only after the Justice Department concluded that the killing would not be a federal crime — and noncriminal conduct doesn’t require immunity. But if the killing were an unlawful murder, then even a narrow presidential immunity would protect Mr. Obama, on the theory that he was exercising basic commander in chief power that the Constitution assigns to the president.
This scaled-down presidential immunity sensibly sorts the hypothetical scenarios that saturate popular discourse. If reasonable exercise of commander in chief power is immunized, then Mr. Obama’s drone strike in Yemen and President Harry Truman’s bombing of Japan would be clear examples of conduct that is immune from prosecution.
But an assassination order that targets a political rival isn’t a reasonable exercise of a core constitutional power. Nor is taking a bribe for a presidential pardon, using the State of the Union address to commit treason or asserting a presidential role in the quadrennial tabulation of electoral votes. In those scenarios, the immunity vanishes.
Proponents of broad presidential immunity worry that bad-faith prosecutors will interpret criminal laws too expansively or charge ex-presidents on thin evidence. These are legitimate concerns, but the answer need not be immunity. Courts could short-circuit such prosecutions by facilitating early phase review of legal questions and holding the government to higher burdens of proof. A narrow immunity coupled with such procedural protection would spare presidents the indignity of ill-advised prosecutions.
This view of immunity maps well onto some of the arguments to which the parties have nodded in passing. For example, the United States’ brief to the D.C. Circuit Court twice mentions the possibility of a narrow immunity for conduct that is “essential” to “constitutionally assigned functions.” Its most recent Supreme Court filing gestures at that standard again.
Within these parameters, the precise formulation doesn’t matter. The point is that, when the Supreme Court reviews the special counsel’s prosecution, it should do more than simply reject Mr. Trump’s assertion of official acts immunity. It should use the case to ensure that the federal judiciary has properly calibrated tools to ward off prosecutor abuse promised as political retribution.
Lee Kovarsky (@lee_kovarsky) is a professor at the University of Texas School of Law.