Monday, July 1, 2024

Court Expands Presidential Immunity, Remands January 6 Case Against Trump

The Supreme Court ruled today that a former president enjoys certain immunity--and as a practical matter probably near total immunity--from federal criminal prosecution for actions taken while in office. The sweeping ruling remands the immunity issue back to the district court in former President Trump's criminal case based his efforts to overturn the results of the 2020 presidential election. That means that the prosecution and former President Trump will have to re-litigate the immunity issue at the district court, and re-appeal the ruling to the appellate court and Supreme Court, before the criminal case can move forward.

Under the Court's ruling today, the immunity question could take many months or even years to re-work through the courts. This means that former President Trump won't go to trial in the January 6 criminal case before the 2024 election, if ever.

I say "if ever" for three reasons. First, if former President Trump is elected, he could order the Justice Department to drop the case. Next, former President Trump will undoubtedly find other ways to challenge the prosecution, yet further dragging things out. (Justice Thomas recommends one in today's ruling; see below.) Finally, it's not at all clear that today's ruling leaves any presidential action, as a practical matter, outside the scope of the immunity that the Court created. In other words, the Court's ruling may--again, as a practical matter--provide a president with complete immunity, or all-but-complete immunity, from federal criminal prosecution for actions taken while in office.

The Court held that a former president's immunity from federal criminal prosecution falls into three buckets. First, a former president is absolutely immunity for actions taken within the presidents "core constitutional powers"--those inherent and exclusive Article II powers that belong to the president alone. According to the Court, these include "for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States."

Next, a former president is presumptively immune for actions taken within "the outer perimeter of his official responsibility." According to the Court, "[s]uch an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution." Because this immunity is presumptive, the prosecution can overcome it, but with a very high bar: "At a minimum, the President must therefore be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would post no 'dangers of intrusion on the authority and functions of the Executive Branch.'"

Finally, a former president enjoys no immunity for unofficial acts.

All this may sound like a former president could be prosecuted for acts outside the outer perimeter of their official responsibilities and for unofficial acts. But there are a couple kickers. For one, "[i]n dividing official from unofficial conduct, courts may not inquire into the President's motives." This means that a president's malign motives couldn't convert an official act into an unofficial one. In other words, a president would enjoy immunity after leaving office for official acts, even if the president conducted those official acts for purely non-official reasons (like partisan political retribution, purely personal financial gain, and the like). More cynically, a crafty president could simply cloak their illegal acts in behavior that looked like official action and, voila, gain immunity. Next, courts may not "deem an action unofficial merely because it allegedly violates a generally applicable law." Finally, courts may not use "evidence about" a former president's "immune conduct" in the former president's criminal case, "even when an indictment alleges only unofficial conduct . . . ." This could seriously hamstring a prosecutor when, as would often be the case, they must use a former president's official conduct to prove a criminal case involving purely unofficial conduct.

Taken together, it's not at all clear that, as a practical matter, this doesn't amount to near total immunity for a former president. At the very least, it sets out a clear-as-day roadmap for any president to immunize themselves from future criminal prosecution for nearly any criminal behavior that they may wish to take while in office.

The Court held that former President Trump's use of the Justice Department, including his threat to remove the acting attorney general, fell within the first bucket, inherent and exclusive Article II authority, and that he was "therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials."

Next, it remanded several allegations in the indictment back to the district court for a determination whether they were "official" acts. These include former President Trump's attempts to persuade the vice president to alter the election results; his efforts to enlist the help of state officials, private parties, and the general public in overturning the results; and his communications leading to and on January 6.

Justice Thomas concurred, and wrote to argue an entirely separate issue--that the office of special counsel itself may be unconstitutional, and that the special counsel may therefore lack authority to bring these charges in the first place. That issue wasn't argued or briefed in the case, but it is the subject of a pending motion in the district court in former President Trump's federal criminal case in Florida (the one involving illegal retention of government documents).

Justice Barrett concurred, arguing that some of the allegations in the indictment cover clearly unofficial conduct, for example, former President Trump's efforts to persuade state lawmakers to investigate alleged election fraud. She also declined to join the portion of the Court's opinion saying that courts can't use protected conduct as evidence in a criminal prosecution, even for unofficial conduct.

Justice Sotomayor wrote a lengthy and scathing dissent, joined by Justices Kagan and Jackson. She argued that the Court's ruling effectively places the president above the law, counter to the text, history, and tradition, and provided vivid and chilling examples:

When he uses his official powers in any way, under the majority's reasoning, he now will be insulated from criminal prosecution. Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

This sounds dramatic. But it's very hard to see how the majority's reasoning doesn't lead to these results.

Justice Jackson also wrote a dissent, but just for herself. She argued that the Court's ruling effected a sea change in the criminal paradigm, effectively giving a single person, the president, a get-out-of-criminal-charges-free card, and in that way undermining our system of rule of law.

https://lawprofessors.typepad.com/conlaw/2024/07/court-expands-presidential-immunity-remands-january-6-case-against-trump.html

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