Why the Supreme Court must reject Donald Trump’s argument that presidents can get away with anything
It would be unreasonable to deny a president immunity for actions taken during the legitimate exercise of their duties. But Trump is asking for the kind of unchecked power the founders fought against.
If the U.S. Supreme Court decides that a president has blanket immunity from criminal prosecution for any acts committed while in office, we could hypothetically see a headline like this:
President Trump’s assassination of a political rival upheld as constitutional under the Supreme Court’s ruling in “United States v. Trump.”
The court’s decision on this topic is expected any day. The implications of a ruling allowing a president to engage in criminal conduct while in office, without any meaningful consequences, cannot be understated.
The short-term risks of this decision are numerous: Will criminal indictments pending against Trump in connection with the events of the Jan. 6, 2021, insurrection (in federal court in Washington, D.C.) be viable? What of the allegations of election interference in Georgia state court and allegations of mishandling official and classified documents in federal court in Florida?
These cases would simply disappear.
Yet, far more dangerous is the long-term impact of a decision in favor of Trump. If the Supreme Court grants blanket immunity to presidents — and if Trump is elected in November — the Constitution could be shredded. The implications of United States v. Trump could dismantle any protection from the unrestrained executive power Trump seeks.
And while it’s certainly unthinkable that we would ever see the headline I crafted above, the argument behind it is one that Trump’s own attorneys made during a remarkable exchange with U.S. Circuit Court of Appeals Judge Florence Pan during a January hearing in Washington.
“Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?” Judge Pan asked Trump’s lawyer, John Sauer.
“If he were impeached and convicted first,” Sauer responded.
“So your answer is no,” Pan said.
“My answer is a qualified yes,” Sauer said.
Sauer’s response gave me chills. No fair-minded person would deny the president — any president — immunity for acts taken within the legitimate exercise of official duties, irrespective of whether individuals approve or disagree with them.
But Trump is asking the court to grant him the same kind of unchecked power our nation’s founders started fighting against in 1775.
Some degree of immunity is necessary for the executive branch because an inevitable consequence of the democratic process is that millions of people disagree with what their president is doing. You may find the president’s immigration policy reprehensible, or his tax policy to be grossly unjust, or the failure to protect Social Security as lacking in basic minimum standards of compassion, or the withdrawal from the Paris Agreement on climate change as unwise and unfair.
Such policies and decisions, however unpopular, unequivocally fall within the ambit of official duties. No self-respecting court would entertain criminal charges for this type of conduct. But there should be an exemption only when conduct can be legally defined as within the official duties of a president. The acts alleged in the pending indictments against Trump — including his demand that Georgia’s chief elections official “find 11,780 votes” and showing visitors at one of his golf courses a secret Pentagon “plan of attack” — are clearly not.
The Constitution, which makes no mention of presidential immunity, admittedly provides an alternative for holding a president accountable for criminal acts in office. A president can be impeached by the House and found guilty after trial in the Senate for “high crimes and misdemeanors” and be removed from office.
But as we know from recent events, impeachment has no teeth and is hostage to partisan politics: Bill Clinton, a Democrat, was impeached by a Republican House but found not guilty in a Democratic Senate. Donald Trump was impeached twice by a Democratic House and found not guilty twice in a Republican Senate.
Given the diluted impeachment process, we have no other recourse to deter and punish criminal conduct by a president unless we allow criminal charges to be brought to court, just as they would against any other citizen for the same conduct.
The assertion that a former president will be vulnerable to deficiencies in the flawed criminal justice system from zealous prosecutors or frivolous lawsuits is a red herring. These are precisely the dangers faced by all criminal defendants, and a former president would have the same safeguards and protections available to any other criminal defendant.
This is about far more than Donald Trump. At risk here is the very core of our constitutional democracy.
But this is about far more than Donald Trump. At risk here is the very core of our constitutional democracy. After all, we had a revolution over this principle. Like a president with blanket immunity, the British monarch then had virtually unlimited power and authority to act without fear of criminal prosecution. And as a new nation, we rejected that principle.
It seems unlikely that the court will unanimously recognize absolute, blanket immunity, bestowing on Trump the status and privileges of a monarch or “Red Caesar.” The court instead may exempt conduct that falls within the president’s legitimate official duties from criminal prosecution. It seems likely, however, that there will be voices on the court which, while they may not go as far as extending blanket immunity, would dilute the definition of what constitutes official acts and expand immunity to conduct that is “merely plausible” — a toothless standard.
The key is whether a president acts in his official capacity to fulfill his oath, or for his own personal and political gain. How difficult is it to determine whether, for example, inciting an insurrection, interfering with an election, or mishandling classified documents, as alleged against Trump, are within the scope of the president’s official duties?
Only when conduct can be legally and unambiguously classified as “official” should there be an exemption from prosecution, and it is the responsibility of the court to provide a clear and workable definition. When a president’s behavior fails to meet that standard, a jury must be allowed to determine guilt or innocence in a court of law.
Criminal prosecution for conduct while in office is the only viable way to keep democracy safe from tyranny. Our country fought a war to free ourselves from a British tyrannical monarch. Blanket immunity puts us at risk of replacing him with an American one.
Susan Sullivan is a professor in the political science department at Temple University.