A truly momentous event unfolds at the Supreme Court on Thursday as the justices engage in oral arguments concerning Donald Trump’s bold assertion of immunity from prosecution after leaving office for any actions undertaken during his presidency. Trump’s claim hinges on the notion that his efforts to obstruct the certification of Joe Biden’s election victory fell within the ambit of his official duties, rendering him exempt from criminal charges.
Historically, the question of post-presidential immunity from criminal prosecution has remained unresolved by the Supreme Court. During his presidency, Richard Nixon faced the threat of prosecution as an unindicted co-conspirator in the Watergate scandal. However, the Justice Department ultimately decided against pursuing charges, citing the constitutional principle that a sitting president could not be criminally prosecuted. Upon his resignation in 1974, Nixon accepted a pardon from President Gerald Ford, effectively shielding him from criminal liability.
Trump’s argument, however, goes far beyond Nixon’s case. He contends that he is immune from prosecution for any “official acts” as president, regardless of whether he has been impeached, convicted, and removed from office. Despite being impeached twice, the Senate failed to reach the two-thirds majority required for conviction. Thus, if the Supreme Court were to adopt Trump’s reasoning, it would effectively grant him and future presidents immunity from prosecution after leaving office, given the current political climate.
Trump’s definition of a protected official act is expansive. During earlier arguments before the federal appeals court in Washington, D.C., his lawyer, D. John Sauer, engaged in an exchange with Judge Florence Pan that highlighted the breadth of Trump’s claim. When Judge Pan posed the hypothetical scenario of a president ordering SEAL Team Six to assassinate a political rival, an action that would constitute an official act given the president’s role as commander-in-chief, Sauer asserted that a former president could not be charged for such an order unless he had been “impeached and convicted first.”
A three-judge appeals court panel, comprising two Democratic and one Republican appointee, unanimously ruled against Trump on the immunity issue in February. Trump subsequently appealed to the Supreme Court, although he will not be present at today’s hearing due to his ongoing trial in New York on charges of falsifying business records to conceal damaging information during the 2016 presidential election.
While Trump faces four pending criminal indictments, only one is currently before the Supreme Court: Special Counsel Jack Smith’s case alleging that Trump knowingly and falsely sought to prevent Biden, the duly elected president, from taking office.
This high-stakes case extends beyond the specific question of presidential immunity. It also serves as a test for the Supreme Court itself, both in terms of its substance and its timing. Even if the court were to rule against Trump, a lengthy decision-making process or a remand to the trial court for further findings could potentially delay a Trump trial until after the November election. Should Trump win a second term, he could attempt to dismiss the case against him or even pardon himself if convicted.
Trump’s lawyer, William Scharf, maintains that all of the former president’s alleged actions were official acts and that he cannot be prosecuted for them after leaving office. Scharf argues that without presidential immunity, “presidents will be paralyzed by the fear of post-election criminal prosecutions, and the ability of the President to discharge his duties in a vigorous and effective way will be forever crippled.”
Peter Keisler, a former top Justice Department official in the George W. Bush Administration, counters this argument by asserting that “You don’t protect the presidency by immunizing somebody who tries to steal it.” Keisler, along with several dozen high-ranking former GOP officeholders, has filed a Supreme Court brief opposing Trump’s position.
“The text of the Constitution has no provision granting this immunity. No court decision has ever recognized this immunity. The historical understanding in our country has always been exactly the opposite,” Keisler says. “Fundamentally, Trump’s argument’s just at war with the basic precept of our system that says that no one’s above the law.”
NYU law professor Trevor Morrison also challenges Trump’s claim that his actions surrounding the 2020 election were part of a president’s official duties. “The Constitution gives the President no role whatsoever in the administration of federal elections,” says Morrison, adding that the states, Congress, and even the Vice President play a role, but there is no mention of the President in the Constitution.
As for Trump’s assertion that no president can be prosecuted unless he has been first impeached, convicted, and removed from office, Morrison calls that argument “preposterous.” Senate Republican Leader Mitch McConnell clearly rejected that idea when he voted against conviction in the second Trump impeachment. “President Trump is still liable for everything he did while he was in office,” McConnell said in a speech on the Senate floor. “We have a criminal justice system in this country … and former presidents are not immune.”
However, Trump’s lawyer, Scharf, contends that if the Supreme Court does not put a stop to presidential liability now, “You’ll have an endless cycle of recriminations and prosecutions at the end of every presidency.” If Trump can be prosecuted after leaving office for his actions in seeking to overturn the election results, he asks, why not Biden for his handling of the border, Barack Obama for ordering drone strikes that resulted in American casualties, or George W. Bush for starting the Iraq War?
Trump’s argument relies heavily on a 1982 Supreme Court decision holding that presidents have absolute immunity from civil lawsuits for their official acts. However, the court majority in that case emphasized that it was not deciding whether a similar immunity exists when it comes to criminal prosecutions. In that landmark decision, the court ordered Nixon to turn over to prosecutors specific White House tape recordings in which Nixon, then still president, plotted to cover up various campaign crimes, including the attempted bugging of the Democratic National Committee offices. When the White House tapes eventually became public, they led inexorably to a House committee vote to approve articles of impeachment and Nixon’s ultimate resignation.
Despite the weight of historical precedent, Thursday’s case is not a sure win for the prosecutors. NYU’s professor Morrison notes that three members of the court — Chief Justice John Roberts and Justices Elena Kagan and Brett Kavanaugh — previously served in the White House and were “responsible for attending to questions of presidential prerogatives and presidential power.” Kavanaugh, in particular, has a unique perspective, having played a role in both the special counsel’s investigation of the sex scandal involving President Bill Clinton and, more notably, serving as an associate counsel and then for three years as staff secretary for President George W. Bush.
With this in mind, the brief filed by the group of former GOP officeholders has proposed a middle ground. It rejects presidential immunity for federal crimes undertaken by a president on or after Election Day in order to usurp the legitimate results of a democratic election. “On the particular facts of the case, where the charge is that he unlawfully tried to seize the presidency after losing the election, it’s sufficient to say there’s certainly no presidential immunity … for crimes like that,” says Peter Keisler.
This would leave unresolved the thorny question of immunity for presidential decisions involving foreign relations or the use of the military abroad.
