On July 1, 2024, the Supreme Court handed down its 6-3 ruling in the landmark case Trump v. United States, finding that the president is entitled to presumptive immunity from prosecution for all official acts, but not for unofficial acts. In this episode, Sai Prakash of the University of Virginia Law School and Michael McConnell of Stanford Law School join Jeffrey Rosen to delve into the Supreme Court’s immunity decision and explore the history of presidential power and immunity from the founding to present day, and whether the Court’s decision comports with the original understanding of the Constitution.
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Today’s episode was produced by Lana Ulrich, Samson Mostashari, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Cooper Smith, and Yara Daraiseh.
Participants
Michael McConnell is the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, and a senior fellow at the Hoover Institution. His most recent book, is The President Who Would Not Be King: Executive Power Under the Constitution (2020).
Sai Prakash is a James Monroe Distinguished Professor of Law at the University of Virginia School of Law. His most recent book is The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers (2020).
Jeffrey Rosen is the president and CEO of the National Constitution Center. Rosen is also a professor of law at The George Washington University Law School and a contributing editor of The Atlantic. His most recent book is The Pursuit of Happiness: How Classical Writers on Virtue Inspired the Lives of the Founders and Defined America.
Additional Resources:
- Trump v. United States (2024)
- Loper Bright Enterprises v. Raimondo (2024)
- Michael McConnell, The President Who Would Not Be King: Executive Power Under the Constitution (2020)
- “Former Federal Judge Michael McConnell Discusses Presidential Immunity and Trump Cases with Pam Karlan,” Stanford Legal podcast
- Sai Prakash, Imperial from the Beginning: The Constitution of the Original Executive (2015)
- Sai Prakash, The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers (2020)
- "Does the Supreme Court ruling make the president a king? Not quite, says this Virginia law professor,” WTOP News (July 2, 2024)
- Sai Prakash, Prosecuting and Punishing Our Presidents, Texas Law Review (Nov. 2021)
Excerpt from Interview: Sai Prakash argues that statutes should not automatically apply to presidential acts. He believes the president’s constitutional powers should not be exercised for corrupt purposes and that Congress has the authority to regulate such conduct.
Sai Prakash: I think I would have approached it the way that maybe Justice Barrett thought about it, but reached a different result. I do think the first question is, do these statutes apply to official acts? And I would not automatically read them as applying to official acts of government officials or to, in particular, presidential acts. There are many cases where the court has said, we're not going to construe a general statute to apply to the president, at least three prominent cases where the court has said that, and they don't engage in that kind of analysis at all. And I think it's worth thinking about whether these statutes should apply to the president's constitutional acts. And then you're essentially deciding a statutory question rather than a constitutional one. And then I think if you get to the constitutional question, I would have said, does the president have the power to use constitutional powers for corrupt reasons? And I think there's a good argument that maybe the powers that are given to the president cannot be exercised in that way. And when the president does it, it's not an official act at all.
Alternatively, you might say, look, even if it can be construed as a presidential act or a constitutional act, Congress can come in and Congress has authority to pass necessary and proper laws. And why can't it, again, make it a crime for a president to use his constitutional or statutory powers for corrupt reasons? And so my friend John Harrison, my colleague here asked the question, what if the president says to the troops, "Stand down, don't fight the enemy," and he's doing so for treasonous reasons. He's giving aid and comfort to the enemy. I don't know why that couldn't be prosecutable. I don't know why the Constitution requires that that act be non-prosecutable because it involves an official act. Now, the court doesn't say that the commander-in-chief power is a core power. It kind of leaves open that question. But it does say it's clearly an official power, and it does leave open the possibility that it might be absolutely immune. I just don't see why that's necessary.
I would say, of course, the president has various powers, pardon power, commander-in-chief power, but I don't think any of them go so far as to say that he can exercise any of them for corrupt or wrongful reasons. And where the allegation is that there are corrupt and wrongful reasons and where we believe the statute means to reach presidential official conduct, then I think the Congress has authority under the necessary and proper clause to reach that conduct. And none of the justices quite say that, because the dissent itself concedes that maybe something like the pardon power or whatever can be made officially immune. And I think actually, in some sense, that concession goes perhaps a bit too far.
Excerpt from Interview: Michael McConnell argues that prosecuting a president for allegedly corrupt official acts shifts decision-making power from the president to juries, undermining the constitutional structure.
Michael McConnell: I think the pragmatic point here is that, in order to answer the kinds of questions that she is posing, you would have to already have the proceeding underway. It's a criminal proceeding, right? And so, there would have to have been an arraignment. You would have to have the trial begin. There would then be arguments over whether particular acts are criminal or not and what the president's motives were, and so forth. You're already three quarters of the way there in terms of the damage which is done. Most immunities actually take place like this; they take place at the very beginning, and they spare the person who enjoys the immunity, not just from conviction, but also from having to go through the process of trial. That's true of double jeopardy, that's true of the speech and debate clause immunity for Congress, and it's true in a number of civil contexts, for example, under the religion clauses where churches cannot be hurled into court for their ecclesiastical decisions. That's usually the way immunity works.
Jeff, could I comment on the idea that it's okay to prosecute for official acts done for corrupt reasons? I strongly disagree with Sai that there's no problem with this. Corrupt reasons is an extremely broad category in the law, and it really comes down to whether the president acted sincerely for the public good or in his own interest. But in the real world, presidents often act out of political reasons. They do things, yes, because they think they'll promote the public good, but also because they think it's going to advance their chances for re-election or help their party or do any number of other things that can be easily described as corrupt. And so if the president says to the troops, "Stand down," in every single case, there are going to be good foreign policy reasons for ordering them to stand down. And then there's going to be some evidence that the president also had corrupt motives for it.
And if it goes to the jury, essentially what you're being asked, the jury is going to decide whether the president was right, whether it was in the public interest to stand down or not. The decision as to whether to stand down is not entrusted to juries. It's entrusted to the president. And if we create a process in which the president's decisions on matters of that sort are subject to re-examination by juries, we have created an entirely different constitutional structure. Then the problem here is not just that the president is distracted, it's that the powers of his office have been taken away from him and given to juries. And that's just not our system.
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