Trump Seeks “Absolute Immunity” from Prosecution

On the 1st of July 2024, the US Supreme Court handed an unprecedented ruling that Donald Trump could not be prosecuted for any official acts committed within the confines of his constitutional and statutory authority as the 45th president of the US. For the first time in US jurisprudence, the Supreme Court recognized immunity from criminal prosecution for former presidents.

In the 6–3 ruling written by Chief Justice John Roberts, the court quashed the decision of a federal district court and that of the US Court of Appeals of the District of Columbia, where both courts had rejected the assertion that Trump enjoyed immunity from criminal prosecution.

When hearing Trump’s immunity appeal, SCOTUS granted certiorari on whether former presidents enjoy presidential immunity from criminal liability for official acts. After hearing the case, the Supreme Court laid down a three-tiered framework for presidential immunity, pronounced itself on two core issues raised in Trump’s indictment by Special Counsel Jack Smith, and remanded the case back to the trial court.

The Historical Position in US Jurisprudence

Prior to Trump v United States, the US Supreme Court had never considered whether sitting and former presidents enjoy immunity from criminal prosecution for their official acts.

In Nixon v Fitzgerald, the country’s apex court held that the president is absolutely immune from civil liability for actions taken within the outer perimeter of their official duties. When arriving at this determination, the court reasoned that absolute immunity was a functionally mandated incident of the president’s unique office and rooted in the constitutional doctrine of separation of powers.

Fitzgerald further justified the position on the notion that the US president must be free to deal impartially and fearlessly with the responsibilities of his office without any concern for civil liability that could render the president unduly continuous in the discharge of his official duties.

In Clinton v Jones, SCOTUS further clarified that the US president does not enjoy immunity from civil liability predicated on unofficial acts.

However, although the judiciary has never considered the question of whether a president, sitting or former, enjoyed immunity from criminal liability, the executive arm has always taken the position that a sitting president enjoys absolute immunity from prosecution of any act, official or unofficial, while they still hold office. Again, such presidential absolute immunity from prosecution of a sitting president is justified under the constitutional principle of separation of power.

SCOTUS Set a Three-Tiered Framework for Presidential Immunity

In the Trump immunity appeal, the majority in the Supreme Court laid down a three-tiered framework for immunity, which was rooted in principles of presidential exceptionalism. The majority of justices observed that the president occupied a unique position of power in the constitutional scheme.

According to the majority opinion, the president has “unrivalled gravity and breadth” powers, including duties of utmost discretion and sensitivity that should be exercised independently, fearlessly and with bold and unhesitating action. In the majority’s opinion, hesitation could result when the president is making decisions or acting under the pall of potential prosecution, constraining the vigor and energy with which the framers of the US Constitution expected the president to act.

Exclusive Presidential Powers

According to the majority in Trump’s case, the president enjoys absolute immunity from prosecution when acting within the scope of his exclusive constitutional authority. These exclusive functions include the power to remove subordinate executive officials, pardon power, investigation and prosecution of crimes, as well as the power to recognize a foreign nation.

The Supreme Court found that since these powers are preclusive and conclusive, Congress may not criminalize the president’s actions, and the judiciary may not adjudicate criminal prosecution. The Justices concluded that when acting within the exclusive constitutional authority, the president is absolutely immune from criminal liability. Hence, impeachment and election are the only remaining forms of accountability under the US Constitution.

Other Official Acts 

Trump’s appeal ruling by the Supreme Court will also see former presidents retaining presumptive immunity for all other official acts that do not directly relate to exclusive presidential powers. When arriving at this conclusion, the justices adopted language from both Nixon v Fitzgerald and a recent decision by the DC Circuit Court to define “official acts” as all actions and decisions that occur within the outer perimeter of the president’s official responsibilities that are not palpably or manifestly beyond his authority.

In the majority’s opinion, presumptive immunity means that the president enjoys immunity unless the prosecutor can rebut it by showing that granting it to the act in question would pose no danger of intrusion on the functions and authority of the executive branch of government.

The court described official acts as not only constitutional and statutory powers, but also speaking on behalf of and to the American people in a manner that the president believes would advance public interest. This means that most of a president’s public communications fall under official acts for which they enjoy presumptive immunity from prosecution.

Unofficial Acts

If a president’s act that supports an indictment is deemed unofficial, then they do not enjoy any immunity from prosecution. According to the justices, the justifications that warrant criminal immunity for official presidential acts do not extend to unofficial acts. 

This is so because the immunity established in Trump v United States is intended to protect the functioning of the president’s office and not to insulate the personal or private actions of the president.

What the Supreme Court Ruling Means

The immunity awarded in this case goes beyond protecting former presidents from criminal liability. The majority opinion also insulates former presidents from indictment and prevents a jury from considering “official acts” evidence when pursuing allegations for unofficial criminal actions. This might make it challenging for the justice department to seek accountability for unprotected unofficial acts.

The win in the Trump legal immunity appeal significantly impacted Special Counsel Jack Smith’s election-related prosecution. The majority concluded that Trump is entitled to absolute immunity from prosecution for the alleged actions regarding his discussions with Justice Department officials.

Concerning allegations that Trump pressured his former vice president to decertify the 2020 elections, the court ruled that those actions were official and entitled him presumptive immunity. Whether the prosecutor can rebut this presumption is a question left to the trial court.

With respect to other allegations in the indictment, whether Trump enjoys immunity will depend on whether the trial court will categorize the acts in question as official or unofficial.

Source: Reuters
References:

Congressional Research Service

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