Those who framed the Constitution agreed that unchecked presidential power was a terrible idea writes Andrew Rudalevige.
“No one is above the law in our system and that includes the president. The president is fully bound by the law, the Constitution and statutes.”
That sentiment is a staple of inspirational rhetoric about American exceptionalism – indeed, considered so true as to be trite. Presumably John Roberts thought so when he said just that in 2005, as he sought to win confirmation to the Supreme Court against the backdrop of George W. Bush’s forays into presidential imperialism.
In the Supreme Court’s new decision on presidential immunity, Trump v. United States, Chief Justice Roberts still insists that “the President is not above the law.” Yet he does so after spending 40 pages explaining that the president is, in fact, above the law. The seeming contradiction is bridged by some circular reasoning that seems to “define deviancy down.” Justice Clarence Thomas states it concisely in his concurring opinion: The president is not above the law because, “as the Court explains, the President’s immunity from prosecution for his official acts is the law.”
The Supreme Court is right that presidents have powers Congress can’t infringe upon. But that doesn’t mean those powers can never be exercised in a criminal fashion. And thus the ruling goes well beyond setting a “core” of presidential autonomy to lay out a vague but expansive set of principles overextending immunity and undermining accountability.
As a result, it may turn out former President Richard Nixon was right after all. “When the president does it,” he famously told an interviewer in 1977, “that means that it is not illegal.”
What is immune?
The majority divide presidential actions into three categories:
- official actions taken within the president’s “core constitutional powers” – any such action is completely immune from criminal prosecution.
- official actions that don’t flow from core powers, but “within the outer perimeter” of the president’s official responsibilities. Such actions receive “presumptive immunity,” but could be prosecuted under some circumstances.
- “unofficial,” private acts – these remain subject to prosecution.
The majority argues this flows from “the separation of powers principles we have outlined” (on which, see below).
Much depends on what actions actually fit into each category. The core powers, the Supreme Court says, are “conclusive and preclusive” – they are given only to the president and precludes action by other branches. This takes in the veto and the pardon power, which are actually in the text of the Constitution. Roberts also specifies the power to fire executive officials, which is not – but which is fundamental to the (mostly theoretical) notion of the president as “unitary executive,” someone who, in Roberts’ framing, personally “is a branch of government.” Another in this bucket – an authority the court recently granted to presidents, in the 2015 Zivotovsky case – deals with matters of diplomatic recognition, based on the president’s constitutional duty to “receive ambassadors and other public ministers.”
How far the “core” zone extends past that is hard to know. Would it include war powers, treaties, executive directives? Justice Ketanji Brown Jackson, in dissent, argues that “the actual metes and bounds of the ‘core’ Presidential powers are really anyone’s guess” at this point. And Justice Sonia Sotomayor’s dissent fears a “considerably larger sphere of conduct than the narrow core… the Court previously has recognized.”
The ruling also leaves undefined the second-tier taxonomy of official responsibilities – and thus which acts receive a presumption of immunity. As Roberts notes (quoting himself in an earlier case, something judges share with academics), “there is not always a clear line between [the President’s] personal and official affairs.” Is conferring with state officials about why they should overturn election results legally distinguishable from a discussion about Medicaid waivers? Is a speech to a ready-to-hang-the-vice-president mob legally distinct from addressing a health care convention? Maybe, but maybe not. The specifics are left for lower courts to work out. But certainly the majority seems open to taking a Sharpie to the map to expand that “perimeter of official responsibilities”: as it notes, any actions that are “not manifestly or palpably beyond [his] authority” would be inside it.
That wider “perimeter” comes with a high fence, too. The presumption of immunity can only be breached if doing so poses “no ‘dangers of intrusion on the authority and functions of the executive branch.’”
Most of that phrase comes from the 1980s Fitzgerald case that protected the president from liability for monetary damages in a civil case stemming from decisions while in office. But Fitzgerald itself set up a test balancing the “danger” to the executive against the weight of the public interest in allowing the suit. As Sotomayor notes, the majority fixes one side of the scale to zero, allowing any lawyer to argue that “no” means literally, well, “no.” Still, in several places justices did suggest that test could be met. For instance, sanctioning Trump’s actions in Arizona, or his pressure on Mike Pence regarding electoral vote certification proceedings, would not undermine the ability of future executives to function effectively.
The size of the last category, unofficial acts, would of course depend on what acts are deemed official. Presumably a president stealing cold medication or hair dye from a Pennsylvania Avenue CVS would still be on the “unofficial” side of the fence. But “in dividing official from unofficial conduct,” Roberts held, “courts may not inquire into the President’s motives.” If it is a power the president has (e.g., issuing a pardon), prosecutors can’t ask whether that action was taken with criminal intent (e.g., in the knowledge a hefty payoff was forthcoming.) This greatly expands the practical scope of the immunity granted. Further, evidence about official acts can’t be used even when prosecuting an unofficial act – this, Roberts says, would be a backdoor way of criminalizing the official act. But as Justice Amy Coney Barrett points out, such an evidentiary rule readily deletes the “quo” from a case involving a quid pro quo.
“United States Supreme Court” (CC BY-NC 2.0) by Thomas Hawk
What next?
The ruling requires lower courts – most immediately, Judge Tanya Chutkan of the D.C. District Court – to evaluate the specifics of the Trump indictments before them. Does the behavior charged fit within the core elements of presidential power, or involve other official duties? Which of Trump’s actions can no longer be used in evidence, as a result?
It seems likely that many elements of the January 6 cases against Trump could move forward – but not fast. The immediate upshot of the decision, then, is to push Trump’s trials past election day. Were Trump to win in November, of course, in January 2025 federal prosecutions would shut down. The indictments in Georgia are also directly affected (though already delayed), and there are spin-off effects, too. Though it is hard to see the pre-presidential fraudulent manipulation of business records as an official act, Trump’s sentencing for his New York conviction has already been pushed back to September to assess the ruling’s implications for that case. Trump’s Espionage Act and obstruction charges over classified documents flow from post-presidential actions – but Trump’s lawyers will doubtless seek to extend immunity there, too.
In the longer term, the impact of the decision will depend on definitional detail. Legal pundits are already debating whether Richard Nixon’s actions during Watergate (broadly conceived) would have received immunity under the decision, or whether the “assassination by SEAL team” hypothetical raised during the case is plausible.
The strong version of unitary executive theory on display in the ruling treats executive branch personnel as a mere appendage of the president – does that make those personnel immune by extension? In any case it appears that presidents could pardon anyone who committed a crime on their behalf without any fear of prosecution.
Ultimately, the courts – and likely the Supreme Court itself – will need to apply the broad categories of this decision to specific actions. Jackson’s dissent observes that this will boost judicial authority (a recurring theme in recent opinions); “a majority of this Court, applying an indeterminate test,” she writes, “will pick and choose which laws apply to which Presidents…”
Separating, or checking?
As noted earlier, the majority rests its logic on a version of the Constitutional separation of powers that highlights Alexander Hamilton’s take in Federalist 70 on the need for presidential “vigor” and for “energy in the executive.” Immunity, the Supreme Court says, is required if the president is to undertake “bold and unhesitating action,” behave “forcefully,” or “fearlessly and fairly,” or for that matter “boldly and fearlessly.”
This seems a harsh judgment on all previous presidents. Some of them, surely, acted boldly (etc.) without any reason to expect blanket immunity from criminal proceedings. Without Gerald Ford’s pardon, Nixon would have been prosecuted; Bill Clinton, for his part, accepted a plea deal.
Further, the Court’s torrent of adverbs bypasses Hamilton’s own Federalist 69, which reassured potential constitutional ratifiers that the presidency was not inherently powerful and would be well-checked by the other branches (and even “amenable to personal punishment and disgrace”). Problematically for those seeking the “Framers’ intent,” that diverse group had diverse opinions about most things. But they were united around the notion that unchecked power was a terrible idea, and presidential power most of all. Indeed, one of the original members of the U.S. Supreme Court, James Iredell, promised the North Carolina ratifying convention in July 1788 that “If the President does a single act by which the people are prejudiced, he is punishable himself…. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.”
None of this is to say that presidents have no executive autonomy. They do need the “competent” (not commanding) powers Hamilton envisioned in Federalist 70 as sufficient to fend off the other branches of government. Indeed, it is reasonable to think that presidents could take actions that are impeachable, but not indictable – that one could in fact fire an executive official for reasons that constitute “the abuse or violation of some public trust” (Hamilton again) but which are not contrary to the statute books. Presidential abuse of power is often political, not purely legal – inflicting “injuries done immediately to the society itself” (both Trump impeachments seem to fall largely in that bucket). Enforcing that vertex of the separated institutions sharing powers would require the kind of institutional pride distinctly absent from Congress in recent years.
Routine, or Extreme?
The Court rejected the chance to write a narrow opinion tied to the time-bound facts of the case before them. Instead, the majority decided it needed to write “a rule for the ages,” as Justice Neil Gorsuch said in oral argument.
But why? The majority stressed that it would impose a “counterproductive burden” if “a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions.” Yet it never says why this would be a common occurrence. After all, the question has never come up before. So the specter of constant legal persecution seems like, well, “fear-mongering on the basis of extreme hypotheticals” (as Roberts accused the dissenters of doing).
Instead, the justices assumed that extreme would be routine, an extrapolation from the Trump presidency that does the Constitution, the country, and even the Supreme Court itself no favors. Perhaps Justice Oliver Wendell Holmes provided the better guide: “great cases,” he wrote in 1904, “… make bad law.”
Listen to The Ballpark podcast: The Limits of Presidential Power with Professor Andrew Rudalevige
- A longer version of this article first appeared at Good Authority and is reposted under a CC BY-ND 4.0 licence.
- Please read our comments policy before commenting.
- Note: This article gives the views of the author, and not the position of USAPP – American Politics and Policy, nor the London School of Economics.
- Shortened URL for this post: https://wp.me/p3I2YF-e5n
