There is a lot to digest in the Supreme Court's decision in Trump v. United States. Here, we'll summarize the main takeaways before diving into this landmark decision's more granular holdings.
The decision hobbles the prosecution against Trump to the extent that it is very much in question if he will ever face charges for any alleged attempt to overturn the 2020 election.
The Main Takeaway: Broad Absolute Immunity
The Supreme Court held that presidents and former presidents have absolute immunity from criminal prosecution for actions within their exclusive constitutional authority. These include actions such as vetoes, pardons, and recognizing foreign countries.
In addition, presidents have a strong presumptive immunity for all other official acts. This means almost all actions undertaken while in office are presumed immune from criminal prosecution. However, there is no immunity for unofficial acts.
The Supreme Court also offered suggestions for determining when an act was official or unofficial and sent the case back to the district court to determine whether a few of Trump's alleged actions were unofficial.
The Court emphasized that presidents must be protected from undue legal proceedings that could hinder the effective functioning of the executive branch.
How We Got Here
The case arose from one of the four criminal prosecutions against Donald Trump. A federal grand jury indicted the former president on four counts related to his actions following the November 2020 election, alleging he conspired to overturn the results through false claims of election fraud.
Trump sought to dismiss the indictment, claiming Presidential immunity for actions within his official duties. The district court and the D.C. Circuit Court of Appeals denied his motion, stating former presidents do not have federal criminal immunity. The Supreme Court took up the case and reversed both lower courts.
The Law Up Until Now
The Department of Justice has long held that it would not criminally prosecute sitting presidents for violations of federal law. Further, the Supreme Court held in Nixon v. Fitzgerald that presidents and former presidents enjoy absolute immunity from lawsuits for official acts undertaken in office (but not unofficial acts, as established in Clinton v. Jones).
However, the Supreme Court has never had to decide whether presidents were immune from criminal prosecution after they leave office.
The Law After Trump v. United States
There are essentially three separate holdings in the case:
- Due to the separation of powers doctrine, any power explicitly granted to the president in the Constitution is exclusively the realm of the presidency. As such, Congress cannot restrict it.
- Federal courts must give presidents a presumption of immunity where the president and Congress share power. As the Supreme Court put it, "[a]t a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.”
- The president does not have immunity for unofficial acts.
What is an official act? According to the Court's guidance, it is:
- When the president acts according to constitutional and statutory authority. This should be interpreted broadly, encompassing all behavior “not manifestly or palpably beyond his authority.”
- Further, federal courts cannot analyze or use evidence to show a president's motive in determining whether it was official or unofficial.
How the Ruling Affects Trump's Prosecution
The Supreme Court remanded (sent back) the case to the district court to determine whether Trump acted in an official capacity on a few of the charges. Some charges, however, the Supreme Court essentially threw out. To fully understand what this means, we must first examine what the allegations against Trump were. These are below. Right below the allegation, we have included what the court held.
Prosecutors claimed that:
Trump and his co-conspirators organized fraudulent slates of electors in seven targeted states and caused these fraudulent electors to transmit their false certificates to the Vice President and other government officials to be counted at the certification proceeding on January 6. They pressured the Vice President to use his ceremonial role to promote this false slate of electors instead.
Holding: Trump is immune since whenever the president and vice president discuss their official responsibilities, they engage in official conduct.
Trump and his co-conspirators attempted to use the Justice Department to conduct sham election crime investigations and to use the DOJ's authority to convince states to submit a false slate of electors.
Holding: Trump is immune since all actions undertaken by the Justice Department are within the scope of presidential powers.
On January 6, when a crowd violently attacked the Capitol and halted the election proceeding, Trump and his co-conspirators exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to delay the certification further. They also attempted to influence state officials and electors.
Holding: The president is presumed to be immune, but these questions were sent back to the district court to determine whether the government could overcome this presumption.
The District Court must, therefore, look at all of the facts and allegations to determine whether the charges "would pose any dangers of intrusion on the authority and functions of the Executive Branch." Nor can the court look at evidence regarding Trump's intentions or motivations. So, the district court cannot determine, nor can a jury hear about, whether Trump knew his election fraud claims were false, as one example.
What It Means for Trump
It is an unequivocal victory for Trump. Even if the district court holds that Trump does not have immunity for every action he took, any theoretical trial would likely occur after the election. If Trump wins, he would tell the DOJ to stop the prosecution (which they would do since they do not prosecute sitting presidents in any case).
What About Future Criminal Acts?
Anticipating future criminal law violations that a president can break freely is difficult. However, according to Justice Sonia Sotomayor's dissent, a president is now able to:
- Order the assassination of a political rival
- Accept a bribe to issue a pardon
- Organize a military coup
The majority calls this allegation "fear-mongering," but it is unclear whether a president could be charged with crimes for any of these actions. For example, since pardoning power for federal crimes is exclusively the realm of the presidency, presidents are immune from bribery charges regarding pardons.
As for other potential bribery charges, it would be extremely hard to know whether a president was bribed when you are prohibited from looking at evidence of a president's motives to determine whether it was an official or unofficial act.
What about the assassination of a political rival? Any assassination attempt carried out using the U.S. military could be argued as within a president's authority as commander-in-chief, as could any attempted military coup.
Instead of these hypotheticals, the majority focuses on the potential pitfalls of allowing one administration to prosecute the previous one. For example, prosecutors, in part, allege that Trump violated Section 371 of the federal code. The majority interpreted this as a broad statute that could lead to charges "for insufficiently enforcing some aspect of federal law," such as immigration. In the majority's view, therefore, it is difficult for a president to operate within the bounds of federal criminal law.
With this decision, Chief Justice John Roberts, who wrote the decision, is trying to avoid ongoing "lawfare" between political parties. That is a laudable goal, to be sure, but whether he and the majority threw out the baby with the bathwater remains to be seen.
Related Resources
- Is a President Immune from Prosecution? Ask the Supreme Court (FindLaw's Courtside)
- The Trump Inquiries, in a Nutshell - FindLaw (FindLaw's Courtside)
- Where the Justices Agreed and Disagreed on Attempts to Keep Trump Off of Ballots (FindLaw's Federal Courts)
