America Depends on Presidential Immunity

By David B. Rivkin, Jr., and Elizabeth Price Foley

July 1, 2024, in the Wall Street Journal

The Supreme Court on Monday rendered the most important defense of separation of powers in its history. Trump v. U.S. concluded that the Constitution requires immunity from criminal prosecution for official presidential acts. The decision isn’t about Donald Trump so much as it is about protecting the presidency itself; future occupants of that office, including President Biden; and the ability of the government to function.

In Federalist No. 70, Alexander Hamilton explained that the executive branch is embodied in a single person, the president, to avoid the “habitual feebleness and dilatoriness” inherent in multimember bodies like Congress. A unitary president ensures vigor in the exercise of executive power for the benefit of the nation. “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

The Trump opinion acknowledged these truths and built on Nixon v. Fitzgerald (1982), which recognized presidential immunity from civil lawsuits predicated on official acts. In that case, Justice Lewis Powell wrote that such immunity is mandated by the president’s “unique position” and “rooted in the constitutional tradition of the separation of powers.” Lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

As Chief Justice John Roberts noted in Trump, that’s even more true of criminal charges. Given “the peculiar public opprobrium that attaches to criminal proceedings,” they “are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Without immunity, “a President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” Immunity is therefore crucial to protect the independence of the executive branch. But the immunity the court recognized isn’t without limit.

The president enjoys absolute immunity for acts undertaken within his exclusive power, as granted by the Constitution. “Once it is determined that the President acted within the scope of his exclusive authority,” the court declared, “his discretion in exercising such authority cannot be subject to further judicial examination.” One of the allegations against Mr. Trump is that he attempted to convince the Justice Department to investigate election fraud. Because the president has ultimate authority over the Justice Department, the high court held that Mr. Trump is absolutely immune from charges relating to his interactions with it.

For acts “within the outer perimeter” of the president’s official responsibility, the justices held, there is “at least a presumptive immunity.” The president has a broad array of “discretionary responsibilities” that aren’t exclusively his. “At a minimum,” the court held, “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.’ ”

Applying that standard, the court concluded that allegations relating to Mr. Trump’s efforts to persuade Vice President Mike Pence to take certain actions during Congress’s certification of electors “involve official conduct,” but left it to the trial judge to determine whether prosecution “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” The court took the same approach to allegations regarding Mr. Trump’s interactions with state officials, private parties and the public. Whether these were “official acts” requires “close analysis” by the trial court, “with the benefit of briefing” by the parties, the justices said. All these questions will be litigated and could again come before the high court.

At the same time, the justices made clear that the president has no immunity from prosecution for private acts. That’s consistent with Clinton v. Jones (1997), which denied Bill Clinton’s claim of immunity in a lawsuit alleging sexual harassment during his time as Arkansas governor. Presidents aren’t “above the law”; they are immune from civil lawsuit or criminal prosecution only for actions undertaken pursuant to the highest law, the Constitution.

The court also wisely rejected special counsel Jack Smith’s argument that determining whether acts are official and therefore immune can wait until after the trial. Presidential immunity “must be addressed at the outset of a proceeding,” the court held, because the mere “possibility of an extended proceeding” may reduce the presidency’s vigor. The justices observed that “we do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.”

Without immunity and prompt pretrial determination thereof, former presidents could face years of court proceedings fighting novel charges predicated on public speeches; negotiations with state, foreign or congressional leaders; or executive orders lacking clear statutory authorization such as vaccine mandates, eviction moratoriums or actions opening the border. Clever prosecutors could conjure up indictments based on opaque criminal statutes such as conspiracy against rights, conspiracy to defraud the U.S., obstruction of justice, mail or wire fraud, racketeering, and false statements or misrepresentations.

The wisdom of the court’s decision is illustrated by charges Mr. Smith levied against Mr. Trump. The Court concluded that many of them were based on official acts and thus constitutionally inappropriate. Other charges were so poorly developed that they must be decided on remand, necessitating even more litigation.

Any prosecution of a president based on his official acts harms the presidency’s effectiveness. The court has sent a clear message to prosecutors like Mr. Smith: You’d better have a strong case, because presidents have immunity for official acts, and they are entitled to prompt judicial determination thereof. If the justices had decided otherwise, our nation would have descended into a destructive cycle of perpetual lawfare, weakening all presidents—including Mr. Biden—and further politicizing the justice system.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.


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