How Did the Supreme Court Reach Its Conclusion of Trump v United States?

3 Jul 2024

Trump v. United States Court Filing, retrieved on July 1, 2024, is part of HackerNoon’s Legal PDF Series. You can jump to any part in this filing here. This part is 14 of 21.



Setting aside this evidence, the majority announces that former Presidents are “absolute[ly],” or “at least . . . presumptive[ly],” immune from criminal prosecution for all of their official acts. Ante, at 14 (emphasis omitted). The majority purports to keep us in suspense as to whether this immunity is absolute or presumptive, but it quickly gives up the game.

It explains that, “[a]t a minimum, the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Ibid. (emphasis added).

No dangers, none at all. It is hard to imagine a criminal prosecution for a President’s official acts that would pose no dangers of intrusion on Presidential authority in the majority’s eyes. Nor should that be the standard. Surely some intrusions on the Executive may be “justified by an overriding need to promote objectives within the constitutional authority of Congress.” Nixon v. Administrator of General Services, 433 U. S. 425, 443 (1977). Other intrusions may be justified by the “primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” United States v. Nixon, 418 U. S. 683, 707 (1974).

According to the majority, however, any incursion on Executive power is too much. When presumptive immunity is this conclusive, the majority’s indecision as to “whether [official-acts] immunity must be absolute” or whether, instead, “presumptive immunity is sufficient,” ante, at 6, hardly matters.

Maybe some future opinion of this Court will decide that presumptive immunity is “sufficient,” ibid., and replace the majority’s ironclad presumption with one that makes the difference between presumptive and absolute immunity meaningful. Today’s Court, however, has replaced a presumption of equality before the law with a presumption that the President is above the law for all of his official acts.

Quick on the heels of announcing this astonishingly broad official-acts immunity, the majority assures us that a former President can still be prosecuted for “unofficial acts.” Ante, at 15. Of course he can. No one has questioned the ability to prosecute a former President for unofficial (otherwise known as private) acts.

Even Trump did not claim immunity for such acts and, as the majority acknowledges, such an immunity would be impossible to square with Clinton v. Jones, 520 U. S. 681 (1997). See ante, at 15. This unremarkable proposition is no real limit on today’s decision. It does not hide the majority’s embrace of the most far-reaching view of Presidential immunity on offer.

In fact, the majority’s dividing line between “official” and “unofficial” conduct narrows the conduct considered “unofficial” almost to a nullity. It says that whenever the President acts in a way that is “‘not manifestly or palpably beyond [his] authority,’” he is taking official action. Ante, at 17 (quoting Blassingame v. Trump, 87 F. 4th 1, 13 (CADC 2023)). It then goes a step further: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” Ante, at 18.

It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority’s test, if it can be called a test, the category of Presidential action that can be deemed “unofficial” is destined to be vanishingly small.

Ultimately, the majority pays lip service to the idea that “[t]he President, charged with enforcing federal criminal laws, is not above them,” ante, at 13–14, but it then proceeds to place former Presidents beyond the reach of the federal criminal laws for any abuse of official power.


So how does the majority get to its rule? With text, history, and established understanding all weighing against it, the majority claims just one arrow in its quiver: the balancing test in Nixon v. Fitzgerald, 457 U. S. 731 (1983). Yet even that test cuts against it. The majority concludes that official-acts immunity “is required to safeguard the independence and effective functioning of the Executive Branch,” ante, at 14, by rejecting that Branch’s own protestations that such immunity is not at all required and would in fact be harmful, see Brief for United States 18–24, 29– 30. In doing so, it decontextualizes Fitzgerald’s language, ignores important qualifications, and reaches a result that the Fitzgerald Court never would have countenanced.

In Fitzgerald, plaintiff A. Ernest Fitzgerald sued thenformer President Nixon for money damages. He claimed that, while in office, Nixon had been involved in unlawfully firing him from his government job. See 457 U. S., at 733– 741. The question for the Court was whether a former President had immunity from such a civil suit.

The Court explained that it was “settled law that the separation-ofpowers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Id., at 753–754. To determine whether a particular type of suit against a President (or former President) could be heard, a court “must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Id., at 754.

The Court explained that, “[w]hen judicial action is needed to serve broad public interests—as when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of jurisdiction has been held warranted.” Ibid. (citations omitted).

On the facts before it, the Court concluded that a “merely private suit for damages based on a President’s official acts” did not serve those interests. Ibid. The Court reasoned that the “visibility of [the President’s] office and the effect of his actions on countless people” made him an easy target for civil suits that “frequently could distract [him] from his public duties.” Id., at 753.

The public interest in such private civil suits, the Court concluded, was comparatively weak. See id., at 754, n. 37 (“[T]here is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions”). Therefore, the Court held that a former President was immune from such suits. Ibid.

In the context of a federal criminal prosecution of a former President, however, the danger to the functioning of the Executive Branch is much reduced. Further, as every member of the Fitzgerald Court acknowledged, see Part IV– B–2, infra, the public interest in a criminal prosecution is far weightier. Applying the Fitzgerald balancing here should yield the opposite result. Instead, the majority elides any difference between civil and criminal immunity, granting Trump the same immunity from criminal prosecution that Nixon enjoyed from an unlawful termination suit. That is plainly wrong.


The majority relies almost entirely on its view of the danger of intrusion on the Executive Branch, to the exclusion of the other side of the balancing test. Its analysis rests on a questionable conception of the President as incapable of navigating the difficult decisions his job requires while staying within the bounds of the law. It also ignores the fact that he receives robust legal advice on the lawfulness of his actions.

The majority says that the danger “of intrusion on the authority and functions of the Executive Branch” posed by criminally prosecuting a former President for official conduct “is akin to, indeed greater than, what led us to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” Ante, at 13 (quoting Fitzgerald, 457 U. S., at 745). It is of course important that the President be able to “‘“deal fearlessly and impartially with” the duties of his office.’” Ante, at 10 (quoting Fitzgerald, 457 U. S., at 752).

If every action the President takes exposes him personally to vexatious private litigation, the possibility of hamstringing Presidential decisionmaking is very real. Yet there are many facets of criminal liability, which the majority discounts, that make it less likely to chill Presidential action than the threat of civil litigation.

First, in terms of probability, the threat of criminal liability is much smaller. In Fitzgerald, the threat of vexatious civil litigation loomed large. The Court observed that, given the “visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages.” Id., at 753.

Although “‘the effect of [the President’s] actions on countless people’ could result in untold numbers of private plaintiffs suing for damages based on any number of Presidential acts” in the civil context, the risk in the criminal context is “only that a former President may face one federal prosecution, in one jurisdiction, for each criminal offense allegedly committed while in office.” 2023 WL 8359833, *9 (DC, Dec. 1, 2023) (quoting Fitzgerald, 457 U. S., at 753).

The majority’s bare assertion that the burden of exposure to federal criminal prosecution is more limiting to a President than the burden of exposure to civil suits does not make it true, and it is not persuasive.

Second, federal criminal prosecutions require “robust procedural safeguards” not found in civil suits. 2023 WL 8359833, *10. The criminal justice system has layers of protections that “filter out insubstantial legal claims,” whereas civil litigation lacks “analogous checks.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 386 (2004).

To start, Justice Department policy requires scrupulous and impartial prosecution, founded on both the facts and the law. See generally Dept. of Justice, Justice Manual §9– 27.000 (Principles of Federal Prosecution) (June 2023).

The grand jury provides an additional check on felony prosecutions, acting as a “buffer or referee between the Government and the people,” to ensure that the charges are well-founded. United States v. Williams, 504 U. S. 36, 47 (1992); see also Harlow v. Fitzgerald, 457 U. S. 800, 826, n. 6 (1982) (Burger, C. J., dissenting) (“[A] criminal prosecution cannot be commenced absent careful consideration by a grand jury at the request of a prosecutor; the same check is not present with respect to the commencement of civil suits in which advocates are subject to no realistic accountability”).

If the prosecution makes it past the grand jury, then the former President still has all the protections our system provides to criminal defendants. If the former President has an argument that a particular statute is unconstitutional as applied to him, then he can move to dismiss the charges on that ground.

Indeed, a former President is likely to have legal arguments that would be unavailable to the average criminal defendant. For example, he may be able to rely on a public-authority exception from particular criminal laws,[3] or an advice-of-the-Attorney-General defense, see Tr. of Oral Arg. 107–108.[4]

If the case nonetheless makes it to trial, the Government will bear the burden of proving every element of the alleged crime beyond a reasonable doubt to a unanimous jury of the former President’s fellow citizens. See United States v. Gaudin, 515 U. S. 506, 510 (1995). If the Government manages to overcome even that significant hurdle, then the former President can appeal his conviction, and the appellate review of his claims will be “‘particularly meticulous.’” Trump v. Vance, 591 U. S. 786, 809 (2020) (quoting Nixon, 418 U. S., at 702). He can ultimately seek this Court’s review, and if past practice (including in this case) is any indication, he will receive it.

In light of these considerable protections, the majority’s fear that “‘bare allegations of malice,’” ante, at 18 (alteration omitted), would expose former Presidents to trial and conviction is unfounded. Bare allegations of malice would not make it out of the starting gate. Although a private civil action may be brought based on little more than “‘intense feelings,’” ante, at 11 (quoting Fitzgerald, 457 U. S., at 752), a federal criminal prosecution is made of firmer stuff.

Certainly there has been, on occasion, great feelings of animosity between incoming and outgoing Presidents over the course of our country’s history. Yet it took allegations as grave as those at the center of this case to have the first federal criminal prosecution of a former President. That restraint is telling.

Third, because of longstanding interpretations by the Executive Branch, every sitting President has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office. The majority insists that the threat of criminal sanctions is “more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Ante, at 13. If that is right, then that distortion has been shaping Presidential decisionmaking since the earliest days of the Republic.

Although it makes sense to avoid “diversion of the President’s attention during the decisionmaking process” with “needless worry,” Clinton, 520 U. S., at 694, n. 19, one wonders why requiring some small amount of his attention (or his legal advisers’ attention) to go towards complying with federal criminal law is such a great burden. If the President follows the law that he must “take Care” to execute, Art. II, §3, he has not been rendered “‘unduly cautious,’” ante, at 10 (quoting Fitzgerald, 457 U. S., at 752, n. 32).

Some amount of caution is necessary, after all. It is a far greater danger if the President feels empowered to violate federal criminal law, buoyed by the knowledge of future immunity. I am deeply troubled by the idea, inherent in the majority’s opinion, that our Nation loses something valuable when the President is forced to operate within the confines of federal criminal law.

So what exactly is the majority worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? Ante, at 13. It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking action that borders on criminal.

Instead, the majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate. See ante, at 40.

The Court should not have so little faith in this Nation’s Presidents. As this Court has said before in the context of criminal proceedings, “‘[t]he chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.’” Nixon, 418 U. S., at 712, n. 20 (quoting Clark v. United States, 289 U. S. 1, 16 (1933)). The concern that countless (and baseless) civil suits would hamper the Executive may have been justified in Fitzgerald, but a well-founded federal criminal prosecution poses no comparable danger to the functioning of the Executive Branch.


At the same time, the public interest in a federal criminal prosecution of a former President is vastly greater than the public interest in a private individual’s civil suit. All nine Justices in Fitzgerald explicitly recognized that distinction. The five-Justice majority noted that there was a greater public interest “in criminal prosecutions” than in “actions for civil damages.” 457 U. S., at 754, n. 37. Chief Justice Burger’s concurrence accordingly emphasized that the majority’s immunity was “limited to civil damages claims,” rather than “criminal prosecution.” Id., at 759–760.

The four dissenting Justices agreed that a “contention that the President is immune from criminal prosecution in the courts,” if ever made, would not “be credible.” Id., at 780 (White, J., dissenting). At the very least, the Fitzgerald Court did not expect that its balancing test would lead to the same outcome in the criminal context.

The public’s interest in prosecution is transparent: a federal prosecutor herself acts on behalf of the United States. Even the majority acknowledges that the “[f]ederal criminal laws seek to redress ‘a wrong to the public’ as a whole, not just ‘a wrong to the individual,’” ante, at 13 (quoting Huntington v. Attrill, 146 U. S. 657, 668 (1892)), such that there is “a compelling ‘public interest in fair and effective law enforcement,’” ante, at 13 (quoting Vance, 591 U. S., at 808). Indeed, “our historic commitment to the rule of law” is “nowhere more profoundly manifest than in our view that . . . ‘guilt shall not escape or innocence suffer.’” Nixon, 418 U. S., at 708–709 (quoting Berger v. United States, 295 U. S. 78, 88 (1935)).

The public interest in criminal prosecution is particularly strong with regard to officials who are granted some degree of civil immunity because of their duties. It is in those cases where the public can see that officials exercising power under public trust remain on equal footing with their fellow citizens under the criminal law.

See, e.g., O’Shea v. Littleton, 414 U. S. 488, 503 (1974) (“[W]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivations of constitutional rights”); Dennis v. Sparks, 449 U. S. 24, 31 (1980) (“[J]udicial immunity was not designed to insulate the judiciary from all aspects of public accountability. Judges are immune from §1983 damages actions, but they are subject to criminal prosecutions as are other citizens”); Imbler v. Pachtman, 424 U. S. 409, 428–429 (1976) (“We emphasize that the [civil] immunity of prosecutors . . . does not leave the public powerless to deter misconduct or to punish that which occurs.

This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law. Even judges, cloaked with absolute civil immunity for centuries, could be punished criminally”).

The public interest in the federal criminal prosecution of a former President alleged to have used the powers of his office to commit crimes may be greater still. “[T]he President . . . represent[s] all the voters in the Nation,” and his powers are given by the people under our Constitution. Anderson v. Celebrezze, 460 U. S. 780, 795 (1983). When Presidents use the powers of their office for personal gain or as part of a criminal scheme, every person in the country has an interest in that criminal prosecution. The majority overlooks that paramount interest entirely.

Finally, the question of federal criminal immunity for a former President “involves a countervailing Article II consideration absent in Fitzgerald”: recognizing such an immunity “would frustrate the Executive Branch’s enforcement of the criminal law.” Brief for United States 19. The President is, of course, entrusted with “‘supervisory and policy responsibilities of utmost discretion and sensitivity.’” Ante at 10 (quoting Fitzgerald, 457 U. S., at 750). One of the most important is “enforcement of federal law,” as “it is the President who is charged constitutionally to ‘take Care that the Laws be faithfully executed.’” Id., at 750 (quoting Art. II, §3).

The majority seems to think that allowing former Presidents to escape accountability for breaking the law while disabling the current Executive from prosecuting such violations somehow respects the independence of the Executive. It does not. Rather, it diminishes that independence, exalting occupants of the office over the office itself. There is a twisted irony in saying, as the majority does, that the person charged with “tak[ing] Care that the Laws be faithfully executed” can break them with impunity.

In the case before us, the public interest and countervailing Article II interest are particularly stark. The public interest in this criminal prosecution implicates both “[t]he Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution” as well as “the voters’ interest in democratically selecting their President.” 91 F. 4th 1173, 1195 (CADC 2024) (per curiam). It also, of course, implicates Congress’s own interest in regulating conduct through the criminal law. Cf. Fitzgerald, 457 U. S., at 749, n. 27 (noting that the case did not involve “affirmative action by Congress”).

Yet the majority believes that a President’s anxiety over prosecution overrides the public’s interest in accountability and negates the interests of the other branches in carrying out their constitutionally assigned functions. It is, in fact, the majority’s position that “boil[s] down to ignoring the Constitution’s separation of powers.” Ante, at 40.


Finally, in an attempt to put some distance between its official-acts immunity and Trump’s requested immunity, the majority insists that “Trump asserts a far broader immunity than the limited one [the majority has] recognized.” Ante, at 32. If anything, the opposite is true. The only part of Trump’s immunity argument that the majority rejects is the idea that “the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution.” Ibid. That argument is obviously wrong. See ante, at 32–34. Rejecting it, however, does not make the majority’s immunity narrower than Trump’s.

Inherent in Trump’s Impeachment Judgment Clause argument is the idea that a former President who was impeached in the House and convicted in the Senate for crimes involving his official acts could then be prosecuted in court for those acts. See Brief for Petitioner 22 (“The Founders thus adopted a carefully balanced approach that permits the criminal prosecution of a former President for his official acts, but only if that President is first impeached by the House and convicted by the Senate”).

By extinguishing that path to overcoming immunity, however nonsensical it might be, the majority arrives at an officialacts immunity even more expansive than the one Trump argued for. On the majority’s view (but not Trump’s), a former President whose abuse of power was so egregious and so offensive even to members of his own party that he was impeached in the House and convicted in the Senate still would be entitled to “at least presumptive” criminal immunity for those acts.

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[3] See Nardone v. United States, 302 U. S. 379, 384 (1937) (explaining that public officers may be “impliedly excluded from [statutory] language embracing all persons” if reading the statute to include such officers “would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”); see also Memorandum from D. Barron, Acting Assistant Atty. Gen., Office of Legal Counsel, to E. Holder, Atty. Gen., Re: Applicability of Federal Criminal Laws and the Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaqi 12 (July 16, 2010) (interpreting criminal statute prohibiting unlawful killings “to incorporate the public authority justification, which can render lethal action carried out by a government official lawful in some circumstances”).

[4] Trump did not raise those defenses in this case, and the immunity that the majority has created likely will obviate the need to raise them in future cases. Yet those defenses would have protected former Presidents from unwarranted criminal prosecutions much more precisely than the blanket immunity the majority creates today.