The Supreme Court’s new presidential immunity rule, announced in Trump v. United States, seems on its face to cut against the grain of the court’s recent jurisprudence.
This court has deliberately curtailed executive power, has shown a strong preference to decide only questions before it and no more, and has strong institutionalist and textualist leanings. A new, broad presidential immunity rule, which is how many commentators understand its ruling in the Trump case, seems inconsistent with these principles.
Something does not add up.
Lazy and thoughtless analysis has tried to resolve the contradiction by declaring the court hypocritical or in the tank for Trump. But I have a rule that has served me well in my legal practice. When something seems contradictory, I assume there is a good chance that I have understood it wrong and should try to understand it better.
Here, then, is the better interpretation of Trump v. United States, which fits comfortably within the court’s judicial philosophy.
The new rule of “absolute immunity” states that when the Constitution grants the president “conclusive and preclusive” power — meaning that the Constitution delegates a specific government function to the executive branch alone — the legislative branch cannot make any laws, including criminal laws, to restrict him. So the president cannot be prosecuted for a veto or an appointment, for example.
The president is also “presumptively immune” for “official acts” if a prosecution would intrude on executive branch power.
To demonstrate that this rule is narrow, evaluate the argument proposed by the dissenting justices that a president who stages a coup, assassinates a rival, or takes a bribe in exchange for a pardon would now be immune from prosecution. None of these hypothetical fact patterns would qualify for “absolute immunity,” because each involves competing Constitutional powers. In such cases, the president’s acts would not be “conclusive and preclusive.” Each would also involve unofficial conduct, which remains fully prosecutable. Presumptive immunity would be overcome for the same reasons.
The specific holdings in the Trump ruling underscore this view. For example, the court held Trump immune for threatening to remove his attorney general if he did not comply with unlawful acts. Although this sounds disconcerting at first blush, the court decided only whether Trump is immune for alleged discussions with his own attorney general.
The court did not hold, however, that a president would be immune for exercising the fearsome powers of the Department of Justice to extort state officials into corruptly overturning an election (the equivalent of a coup).
Suppose the attorney general had gone along with Trump’s plan. Or suppose that Trump had used the military to stage a coup or assassinate a rival. In any of those cases, the court would not be assessing only the president’s removal power or his commander-in-chief power, but whether competing Constitutional duties, such as those involving elections and the peaceful transfer of power, were “conclusive and preclusive” powers of the executive. They are not.
And the court could also find in those instances that Trump acted in his “unofficial” capacity as a candidate, not as president. The outcome of the case would thus turn against Trump.
As Justice Ketanji Brown Jackson wrote last year, “Other cases presenting different allegations and different records may lead to different conclusions.” Likewise with selling pardons.
The Constitution limits the president’s pardon power by listing bribery as an impeachable offense and stating that any party impeached and convicted by the U.S. Senate “shall” be subject to criminal prosecution. And the majority opinion in the Trump ruling wrote that accepting a bribe is unofficial conduct — meaning it can be prosecuted.
Chief Justice John Roberts declined to spell this out clearly, choosing instead to be strategically ambiguous. He clearly worries that Trump, who leads in the polls and is being prosecuted under current President Biden, will follow through on his threats of retribution. Roberts wrote that the greater threat facing the nation is not a tyrannical presidency (for which there are other judicial remedies), but “an executive branch that cannibalizes itself, with each successive president free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
Roberts is nothing if not consistent. Twelve years ago, as the fifth vote to save the Affordable Care Act in NFIB v. Sebelius, he wrote “[i]t is not our job to save the people from the consequences of their electoral choices.” It is clear he still feels that way, and he is right. Ultimately, it is up to us to make better electoral choices if we want to get out of this mess.
But make no mistake: the chief justice left plenty of room for a future court to distinguish the Trump ruling and hold a corrupt or treasonous president subject to criminal prosecution.
Adam Cohen is a partner at Walden Macht Haran and Williams and was recently named to Lawdragon X’s Next Generation List of attorneys to watch.