The Supreme Court’s 2023-24 term may best be remembered for a landmark decision about former President Donald Trump’s claims of immunity from prosecution for his past actions as president.
On July 1, 2024, a divided Court set a precedent for immunity from criminal charges made against former presidents. In Trump v. United States, Chief Justice John Roberts’ majority decision said that a former president has criminal immunity for some official actions taken while in office. “At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity,” Roberts explained.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanagh, and Amy Coney Barrett joined the majority decision. Justices Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson dissented.
“At 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,’” Roberts noted. “There is no immunity for unofficial acts,” he concluded.
Roberts then sent the case back to a federal district trial court to reconsider its charges against Trump and draw distinctions between his alleged official and unofficial actions. Most observers agree that any trial faced by Trump for his unofficial acts as president would not be concluded until after the November elections.
The Immunity Majority Decision
The Supreme Court held arguments on April 25, 2024, on the immunity question. The case came to the Court on an accelerated basis. In August 2023, a grand jury indicted former President Trump on four charges related to his actions after the 2020 presidential election. On Feb. 6, 2024, the U.S. Court of Appeals for the D.C. Circuit ruled that Special Counsel Jack L. Smith could move forward with a trial. On Feb. 28, 2024, the Supreme Court granted a stay of that decision, and accepted review of the case.
During arguments, the justices began their questioning by asking Trump’s counsel what defined the official acts of a president; which acts were within the president’s official duties; and what was the extent of liability of former presidents to criminal prosecution for conduct occurring while in office. The justices were attempting to determine how an official act—such as appointing an ambassador—could be disentangled from a private action that could be subject to prosecution, like accepting a bribe, and how a court could evaluate a criminal indictment accordingly.
In the majority decision, Roberts made it clear that the president had exclusive powers derived from the Constitution or an act of Congress. “Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority,” Roberts said, citing several landmark Supreme Court decisions.
But not all acts might fall within a president’s exclusive sphere of “conclusive and preclusive” authority, including areas where the president shares his authority with Congress. “To determine the President’s immunity in this context, the Court looks primarily to the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents,” Roberts wrote.
In this context, Roberts believed that the principle of the separation of powers necessitated “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.”
For the lower court, Roberts offered some guidance when its considers Trump’s official and unofficial acts. The lower court should not inquire into Trump’s motives, and classify an action as unofficial because “it allegedly violates a generally applicable law.” The more difficult questions for the lower court included Trump’s conduct with the “vice president, state officials, and certain private parties.”
“The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity,” Roberts said. But for unofficial acts, “not everything the President does is official. The President is not above the law,” he concluded.
The Other Opinions
In her concurring opinion, Justice Amy Coney Barrett believed a two-step approach applied for the lower courts to decide if a president could not be prosecuted for any official actions.
“I would thus assess the validity of criminal charges predicated on most official acts—i.e., those falling outside of the president’s core executive power—in two steps. The first question is whether the relevant criminal statute reaches the president’s official conduct,” Barrett wrote. “If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no “‘danger of intrusion on the authority and functions of the Executive Branch,’” she concluded.
Justice Clarence Thomas also concurred with the majority’s decision, but wrote separately to question the constitutionality of the appointment of Special Counsel Jack Smith. “There are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed,” Thomas wrote.
Justices Sonia Sotomayor and Ketanji Brown Jackson authored separate dissents. “Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent,” Sotomayor wrote.
“Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity,” she stated.
Jackson agreed with Sotomayor’s full opinion and said the Court created a dangerous new precedent by not allowing a president to be subject to the criminal court system in certain circumstances. “Under the new Presidential accountability model, the starting presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President’s official behavior might be. Regardless of all that, courts must now ensure that a former President is not held accountable for any criminal conduct he engages in while he is on duty, unless his conduct consists primarily (and perhaps solely) of unofficial acts,” Jackson noted.
“The majority of my colleagues seems to have put their trust in our Court’s ability to prevent Presidents from becoming Kings through case-by-case application of the indeterminate standards of their new Presidential accountability paradigm. I fear that they are wrong. But, for all our sakes, I hope that they are right. In the meantime, because the risks (and power) the Court has now assumed are intolerable, unwarranted, and plainly antithetical to bedrock constitutional norms, I dissent,” Jackson concluded.
Scott Bomboy is the editor in chief of the National Constitution Center.
