In his brief in the immunity case that the Supreme Court will hear on April 25, Donald Trump argues that criminal immunity for ex-presidents raises a huge separation of powers issue. He’s absolutely right.
Unfortunately for Trump, the problem isn’t with courts sitting in judgement over ex-presidents. Ex-presidents are constitutional nobodies, and former executive branch officials get prosecuted all the time. The problem is with the idea that the judicial branch could block a future president — or, rather, a future president’s attorney general — from prosecuting an ex-president for crimes committed in office.
Think about what a judicial grant of presidential immunity would mean. The Supreme Court would be preempting the president’s express constitutional duty to “take care that the laws be faithfully executed” and usurping the executive branch’s unique authority to bring criminal prosecutions.
Though that authority is hedged with safeguards that the judicial branch oversees, our constitutional system of government gives the executive branch the sole authority to decide to bring (or not to bring) criminal charges. Prosecutorial discretion is wide and not something to be trifled with by the courts.
While it’s true that the Supreme Court has never before had to consider the question of presidential criminal immunity, there is no need for the court to invent some new analytical framework to figure out the correct answer. Whether an ex-president ought to be criminally prosecuted by a subsequent administration is practically the definition of a “political question” that the judicial branch is powerless to answer. I won’t bore you with the full analysis, but in Baker v. Carr, the Supreme Court set out six factors, any one of which would be sufficient to render an issue a political question that can’t be decided by a court. Criminal immunity for ex-presidents ticks four of those six boxes.
Again, none of this is theoretical. We’ve seen it happen before. After Richard Nixon resigned, President Gerald Ford, after careful consideration, used his constitutional authority to issue Nixon a pardon for his role in the Watergate scandal: “As President, my primary concern must always be the greatest good of all the people of the United States whose servant I am … My conscience tells me clearly and certainly that I cannot prolong the bad dreams that continue to reopen a chapter that is closed. My conscience tells me that only I, as President, have the constitutional power to firmly shut and seal this book. My conscience tells me it is my duty, not merely to proclaim domestic tranquillity but to use every means that I have to insure it.”
Ford could certainly have decided that “the greatest good of all the people of the United States” required Nixon to be prosecuted for his crimes. At the time, many people thought he should be. Had Nixon ordered an elite military group like SEAL Team 6 to assassinate someone, Ford might have reached a different conclusion. And that would have been his call to make. Employing prosecutorial discretion and the pardon power to strike that balance is a matter for the executive branch, not the courts.
“It must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly,” the Supreme Court wrote in 1977. The court was talking about executive privilege in that case, but the same is true when it comes to presidential immunity.
Whether, under all the circumstances, granting a former president immunity is the best thing for the country is a call for the sitting president to make, not the Supreme Court. By accepting this case, the court has already gotten itself entangled in a core function of the executive branch. If that entanglement allows Trump to delay the conclusion of his trial until after the election, that intervention may prove decisive.
We must hope that the court will recognize that and issue its opinion on the first day of May, not the last day of June. The Supreme Court didn’t issue a pardon to Richard Nixon and it shouldn’t issue one to Donald Trump, not even through the back door.
Chris Truax is an appellate lawyer in San Diego and a member of the Guardrails of Democracy Project.