Immunity

Apparently, some men are above the law.

Today, the Supreme Court ruled 6-3 that president’s enjoy some level of criminal immunity. Strong language from Justice Sotomayor in her dissent:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for “bold and unhesitating action” by the President, the Court gives former President Trump all the immunity he asked for and more. Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune. Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today. Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.

First, some background. Last year, Donald Trump filed an appeal to the charges brought against him by Special Counsel Jack Smith for his role in January 6th. Smith charged him with four felony counts, including Title 18 U.S.C. § 371 (Conspiracy to Defraud the United States), § 1512(c)(2) (Obstructing an Official Proceeding), § 1512(k) (Conspiracy to Obstruct an Official Proceeding) and § 241 (Conspiracy Against Rights - specifically our right to vote and have our votes counted.)

Trump’s appeal argued that as president, he enjoyed absolute immunity from criminal charges, even though he argued during his impeachment that you can’t impeach a former president because DoJ can charge him criminally. Certain appeals are interlocutory - meaning they must be decided before trial - and immunity is one of those appeals.

Last December, Jack Smith filed for The Supreme Court to leap-frog over the Circuit Court of Appeals and decide on immunity first. He also filed for an expedited review. SCOTUS granted his expedited review, but denied his petition to hear the case ahead of the Circuit Court.

The Circuit Court ruled that in this case, and given this specific set of circumstances, Trump did not enjoy immunity from the charges. At that point, I assumed The Supreme Court would DENY Trump’s application for a stay. My reasoning was that in an earlier case called Trump v. Thompson, SCOTUS had denied his application. In that case, trump was suing to block documents from his time in office from being handed over to the January 6th Select Committee, arguing that the documents were subject to executive privilege. But the court said that even if Trump were president and had the power to assert executive privilege, these documents wouldn’t qualify because the investigative power of Congress outweighed the privilege. So since the Circuit Court didn’t need to decide privilege, SCOTUS didn’t either. I figured it would stand to reason that in the immunity case - even if SCOTUS wanted to weigh the question for future presidents - they wouldn’t need to because the Circuit Court held that there was no immunity to these specific charges.

But the Supreme Court granted the stay and simultaneously granted certiorari (agreed to hear the matter), and even though the Circuit Court limited it’s ruling to the case before them, SCOTUS decided it wanted to determine whether ANY president has immunity and to what extent.

That brings us to today. There were three possibilities here. First, the court could decide that all presidents enjoy absolute immunity. Second, they could rule that no presidents enjoy any immunity. And third, that presidents enjoy some immunity. Given what I heard during oral arguments (held on the final day of arguments), it seemed as though the court would go with number three, and that’s what they’ve done.

Today, the court determined that a president CAN be immune for some official acts, and that the lower court now needs to determine whether Trump’s acts are official or personal. They also direct the lower court to give Trump the presumption of immunity, and it’s now the government’s burden to prove Trump’s actions are not entitled to immunity. Leah Litman tells MSNBC “Many of Trump’s actions in the indictment are obviously don’t fall within the outer perimeter of the president’s official duties, but the reality is that by writing the opinion this way, they have made it harder for the lower court to proceed to trial, and harder for the lower court to allow much of the indictment to proceed as well.”

Another problem Jack Smith faces is that it appears he will not be able to use any evidence that touches on an official act as evidence at trial. Jack Smith has argued in filings that Trump, as a candidate for office, wielded some official acts to break the law for his own personal gain. For example, as candidate, Trump used the DoJ to attempt to thwart election results in certain swing states. Also, Trump used his power as president to try and persuade his Vice President to throw out electors. Since conducting business with the Vice President and the DoJ are official acts, Jack Smith would not be able to use those acts as evidence at trial even though he is not charged for those acts. Those acts are merely a means by which Trump tried to stop the peaceful transfer of power for his own personal gain.

Justice Roberts writes: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

This ruling means there will need to be an evidentiary hearing in the lower court to determine which of Trump’s acts are immune, and what evidence can or can’t be used at trial.

Andrew Weissmann says it helps to put presidential actions into three buckets:

1. Purely personal conduct - like signing checks for hush money reimbursement. Personal conduct is not immune

2. Core constitutional conduct - like the pardon power. Those are ABSOLUTELY immune (but they’ve always been)

3. Official Acts: The court says that for now, you’ll need to determine whether the conduct is personal or official. The court says it will engage in a presumption, but doesn’t rule out that they might give more later

The court has held that Trump’s discussions with the DoJ are absolutely immune, so that isn’t up for discussion, so that conduct will need to be removed from the charges. With regard to Trump’s conduct with Mike Pence, the burden is now on the government to rebut the presumption of immunity, but that it can see circumstances in which that presumption would fall away. I think it probably does here, but the government will have to prove that on remand. The rest of Trump’s conduct will have to be determined to be official or personal, and that is up to the lower court.

I believe most of Trump’s acts were as a candidate for office, meaning they’re personal, but if the evidence of official acts cannot be used as evidence at trial, Jack Smith will likely have to overhaul his indictment. Here’s the section from Roberts pertaining to that:

The Government does not dispute that if Trump is entitled to immunity for certain official acts, he may not “be held criminally liable” based on those acts. Brief for United States 46. But it nevertheless contends that a jury could “consider” evidence concerning the President’s official acts “for limited and specified purposes,” and that such evidence would “be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.” That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge.

If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted.

One final note: on Trump’s argument that the impeachment judgment clause gives him immunity, the majority says no.

Trump asserts a far broader immunity than the limited one we have recognized. He contends that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution. The text of the Clause provides little support for such an absolute immunity.

I think Judge Chutkan’s ruling on these matters will be appealable because immunity decisions are subject to interlocutory appeal. Therefore, since Jack Smith is no longer racing the clock, he may reveal the rest of his charges against Donald Trump’s co-conspirators. I believe the reason those have not yet been issued is because they would slow down the Trump trial - but if time is no longer an obstacle, he may move forward with the rest of the charges.

You can read the full decision here.

Andrew McCabe and I will break this down with Law Professor Steve Vladeck on this weekend’s episode of the Jack Podcast. Please subscribe wherever you get your podcasts.

~ AG