Opinion | Trump Says He Has Immunity. Will the Supreme Court Beg to Differ?

On August 4, 2023, one day after pleading not guilty to four federal criminal charges arising from special counsel Jack Smith’s investigation into efforts to thwart the 2020 presidential election, former President Donald J. Trump announced on his Truth Social platform that “the Supreme Court must intercede.” What he presumably means is that the Supreme Court, on appeal from motions that his trial team will undoubtedly file in all four criminal cases, should rule that his conduct is untouchable because it involved actions taken while he was still president of the United States.

“Everything that President Trump did was while he was in office as president,” one of Trump’s attorneys, John Lauro, argued on NBC’s Meet the Press. “He is now immune from prosecution for acts that he takes in connection with those policy decisions.”

Trump has raised broad claims of presidential immunity in litigation before, with mostly poor results. Still, the argument is not entirely frivolous, in part because the Supreme Court has only weighed in on presidential immunity in a handful of cases, and none of those involved indictments of a former president. Even if Trump loses his motions to toss out the indictments on immunity grounds at the trial court level, which is likely, the Supreme Court would almost certainly vote to hear the issue on appeal given the unprecedented nature of these cases and the stakes for the presidency and the country.

The issue of how much legal immunity a president or former president enjoys is a somewhat unsettled area of constitutional law. Unlike for members of Congress, who are expressly immune from civil or criminal liability for official acts under the Constitution’s Speech or Debate Clause, the Constitution says nothing whatsoever about presidential immunity. And there are only a few Supreme Court decisions that provide precedent for deciding the issue.

One of the first was a unanimous Supreme Court decision in Mississippi v. Johnson in 1867 which held that courts could not force the president to enforce the post-Civil War Reconstruction Acts, which then-President Andrew Johnson had vetoed. After Congress overrode the veto, the state of Mississippi asked the court to stop Johnson from enforcing the statutes, claiming they were unconstitutional and violated states’ rights. The court held that, because the president’s power to execute the law is foundational to the prerogative of the office under Article II of the Constitution, courts could not step in and direct Johnson how to do his job.

Since then, the Supreme Court has offered some additional guidelines for understanding presidential immunity, but none definitively resolve whether all of Trump’s relevant conduct in office is fair game for the criminal justice system — or whether some sorts of decisions are immunized.

Going forward, the legal analysis will likely boil down to two questions. The first is whether, by asking DOJ officials to declare the 2020 election “corrupt,” for example, or by initiating “catch and kill” hush money payments’ from the Oval Office in order to bury negative publicity, Trump was acting within the “outer boundaries” of executive policy-making authority. If so, certain acts could conceivably be immune from prosecution or otherwise excised from the scope of the criminal indictments.

The second question is whether greenlighting criminal indictments that implicate even borderline conduct would set a bad precedent that could hamper future presidents from performing their constitutional duties. Even if what Trump did as president was unacceptable, in other words, if it fell within the discretion that presidents need in order to do their jobs, it could be protected.

These are issues that the Supreme Court can and probably should decide in the coming months or years as these four indictments proceed. The question will likely come down to balancing the constitutional interest in cementing expansive discretion and power in the presidency against a broader public interest in ensuring the rule of law applies to everyone, including the president. Because there are no clear lines for striking that balance, it’s impossible to rule out that politics and ideology could play a role in that assessment.

Here’s what the Supreme Court will have to weigh in reaching a decision.

No Absolute Presidential Immunity

After Mississippi v. Johnson, the next major case on presidential immunity did not arise until 1974, when President Richard Nixon tried to halt a subpoena directing him to produce tape recordings of his Oval Office conversations. Special prosecutor Archibald Cox had indicted a slew of Nixon’s aides in connection with the Watergate probe. A unanimous Court rejected Nixon’s argument that the Constitution provides “an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”

But, importantly, it left some wiggle room: “A president and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately.” Balancing the public’s interests in justice with the interests of the presidency has been the prevailing standard ever since.

In United States v. Nixon, the fact that Cox sought the information in connection with a criminal trial tipped the scales against the president, on the rationale that “[t]he very integrity of the judicial system and public confidence in the system must depend on full disclosure of all the facts.” Back in 1807, Chief Justice John Marshall, similarly ruled in United States v. Burr that President Thomas Jefferson was susceptible to a subpoena for documents because the accused defendant had a right “to prepare for his defense at trial.” At the time, Marshall was serving as chief justice for Virginia in connection with the treason trial of Aaron Burr.

With the exception of the Manhattan case, all of the Trump indictments involve co-defendants whose right to erect a defense could overcome broad executive privilege or immunity claims regarding information held by Trump. The government could also argue more generally that under Nixon, the needs of the criminal justice system must outweigh theories of presidential immunity.

Official v. Unofficial Conduct

The next important decision came in 1982. In a case called Nixon v. Fitzgerald, the court rejected a lawsuit brought by a U.S. Air Force employee against Nixon challenging his termination after he testified before a congressional subcommittee regarding cost overruns. In a 5-4 decision, the Supreme Court held that the president is “entitled to absolute immunity from damages predicated on his official acts” because civil suits for damages “could distract a president from his public duties.”

The court refused, however, to list the kind of functions that were covered by this protection from civil liability, instead vaguely defining the president’s immunity as stretching to “the ‘outer perimeter’ of his official responsibility.” The majority reasoned that Nixon’s ability to reorganize the personnel structure of the Air Force certainly fell within that boundary, establishing what might be characterized as a first prong of the presidential immunity test: whether the conduct in question was official and thus within the scope of the Constitution.

Accordingly, in 1997, the court in Clinton v. Jones qualified the scope of presidential immunity from civil lawsuits, holding unanimously that the Constitution did not protect President Bill Clinton from having to defend against a lawsuit for damages brought by a former employee, Paula Jones, over alleged sexual advances made while he was governor of Arkansas. The court held that Nixon v. Fitzgerald “provides no support for an immunity for unofficial conduct.” (Emphasis in original.) The allegations in the Jones case had nothing to do with official presidential acts, so immunity did not apply.

Hampering of Presidential Functions

The fifth and final relevant case came down in 2020, when a 7-2 majority effectively upheld Clinton v. Jones, rejecting Trump’s attempt to halt then-Manhattan D.A. Cy Vance’s grand jury subpoena to a third-party accounting firm seeking Trump’s financial records. In Trump v. Vance, all nine justices (including two Trump appointees) agreed that presidents do not have categorical immunity from state criminal subpoenas. Seven of them (including two Trump appointees) found that no immunity applied in that particular case.

In his majority opinion, Chief Justice John Roberts did not focus on whether Trump’s personal and business records related to official presidential acts. (Obviously, they did not.) Rather, he underscored—consistent with the Nixon and Burr cases—that “the public has a right to every man’s evidence” in a criminal proceeding. Roberts then rejected Trump’s claim that “compliance with subpoenas would categorically impair a president’s performance of his Article II functions” (which is the precise argument, by the way, that DOJ used to justify its internal policy memos forbidding indictments of sitting presidents). Avoiding a “mere distraction” from the duties of the Oval Office is not enough to justify broad immunity. In Vance, the majority concluded that “a properly tailored criminal subpoena will not normally hamper the performance of the president’s constitutional duties.”

Still, the Supreme Court might not reach the same conclusion about the threat of a criminal indictment.

Trump’s Immunity Defense

For Trump’s lawyers, the trick will be to paint the actions underpinning the various indictments as falling within the “outer perimeter” of legitimate presidential power, and then arguing that the threat of a criminal indictment stemming from that conduct would cause more than a “mere distraction” from the duties of the office.

In the defamation case brought by E. Jean Carroll, for example, Trump argued in federal court (albeit unsuccessfully) that his public comments denying Carroll’s sexual assault accusation were made because she had “‘impugned his character and, in turn, threatened his ability to effectively govern the nation.’” And in Thompson v. Trump, the civil case brought by eleven members of the House of Representatives and two Capitol Police officers over Jan. 6^th, Trump argued that his actions were constitutionally immune because “he ‘had an ever-present duty to ensure that the election laws were followed, including the certification process,’” and that “the speech and social media posts” falsely touting a stolen election “all addressed matters of public concern.”

Bear in mind, again, that all four criminal cases filed against Trump involve some (but not all) actions taken while he was still president. Teasing out which of these fell within the “outer perimeter” of legitimate discretion will entail a careful reading of the Take Care Clause and other relevant parts of Article II, for starters. Even for actions falling precariously along that thin line, the court will then most likely have to balance whether allowing a criminal indictment of Trump to go forward would, in the words of the Fitzgerald court, curtail future presidents’ “maximum ability to deal fearlessly and impartially with the duties of his office.”

The more compelling argument is that the exercise of legitimate presidential power cannot include the commission of crimes, and future presidents can avoid criminal liability by simply following the letter of law. Criminal convictions require evidentiary proof beyond a reasonable doubt, after all, so the suggestion that the Trump indictments will lead to willy-nilly prosecutions of future presidents for actions done with fidelity to the Constitution seems to be overblown.

Still, how a majority of justices will come down on this calculus is impossible to predict. Justices Samuel Alito and Clarence Thomas both voted against allowing the Manhattan grand jury to subpoena Trump’s financial records, and since that case, Justice Amy Coney Barrett has joined the court’s conservative majority. Just last month, a Pennsylvania state court ruled that Trump enjoys broad presidential immunity from two of three claims raised in a 2021 lawsuit by James Savage, a voting-machine supervisor, alleging that Trump damaged his reputation by falsely accusing him of election tampering.

"The court made clear that it is well within the president’s discretion to address the integrity of our election without fear of liability,” Trump lawyer Alina Habba said of the Pennsylvania ruling.

This is a question that strikes at the heart of the Jan. 6^th indictment itself. And as has happened many times before, it is one that might not be decided by voters or jurors. Instead, the final answer might lie at the feet of the six conservatives on the court whose life tenure provides immunity from any review of their decision.