This blog post reflects my own thoughts on the Supreme Court decision on the question of presidential immunity,
Trump v United States.
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The SC recognised a qualified immunity. In summary, Justice Roberts’s majority opinion held that:
- “Official acts” stemming from core Article II powers carry an absolute immunity from prosecution.
- “Official acts” within the “outer ambit of executive authority” carry a “presumption of immunity”.
- The burden to be discharged by the prosecution.
- Prosecution would need to prove that the action would pose no “dangers of intrusion on the authority and functions of the Executive Branch”. (A v. high burden).
- The above immunities are recognised because of the “compelling public interest in fair and effective law enforcement” 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.”
- Former presidents have no immunity for private misconduct.
- The courts may not inquire into the President’s motives. (a v. important point).
- With respect to whether an action is official, the question is “which of [his] innumerable ‘functions’ encompassed a particular action”.
- The SC’s approach seems to be a negative test of whether relevant action is “not manifestly or palpably beyond [his] authority”.
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The originalist position: conceptualising “immunity” in Article II of the Constitution
For the “originalist”, it’s not the job of the Supreme Court to imagine things as being in the Constitution merely to avoid some possibly unattractive consequences. The Supreme Court’s proper function is not to “solve” society’s problems (or, rather, the perceived problems). The Supreme Court’s job is to look at what is and what is not in the Constitution, and apply it to the cases before them — irrespective of whether it “fixes” the problem. If there is a society problem, then it is the responsibility of Congress as the democratic legislative organ to enact legislation (or a constitutional amendment proposal) to address that societal problem.
If there’s a provision in the Constitution that makes it clear that immunity from criminal prosecution was to be granted to former presidents of the United States, then the Court should identify it and rule accordingly.
However, the concept of “immunity” per se doesn’t arise in Article II of the Constitution.
To that extent, I liked Justice Barrett’s position. She said:
The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.
Instead of searching for “immunity” for Presidential “official acts”; instead she focused on the ambit of Presidential actions which can be subject to criminal prosecution. In other words, it asks whether Congress is constitutionally void from taking certain actions vis-a-vis the president’s nominal act.
Therefore, I think the better argument would be that the President doesn’t have “immunity” per se. The “immunity” simply describes a state of affairs that arises whenever he acts within his constitutional authority. If the President is exercising the authority vested in his office by the Constitution, no outside body has jurisdiction to adjudicate his actions.
Thereafter, this would entail, as Justice Barrett argued, a preliminary determination by the court whether — as a matter of law, not fact — the indictment properly alleges conduct outside the President’s scope of constitutional authority. The sufficiency of an indictment would be a legal question.
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Beyond originalism: the implicit “separation of powers” principles
On the other hand, I do think there might be something missing in the argument that there is no “immunity” articulated
in the Constitution.
It seems obvious to me that when the President undertakes his “official acts”, he cannot necessarily be prosecuted for them. Since all executive power is vested in the executive , Congress cannot make a lawful exercise of executive power illegal. Congress cannot pass a law which limits the constitution’s vesting of executive power in the presidency. To do so would violate the separation of powers and would amount to a direct attack on the President’s Article II powers. Acts undertaken pursuant to his Article II powers must be immune from prosecution.
Otherwise Article II “grants” nothing.
On a tangential point, as noted above, the Supreme Court expressly ruled that the President’s motives were (in English legalese) “non-justiciable”. This is for the obvious reason that the determination of a “motive” would need to be established by evidence; and secondly, that the judiciary are ill-equipped (notwithstanding traditional separation of powers reasons) to divine the whether a motive was indeed improper. It would amount to the Court substituting its own opinion for that of the primary decision-maker on questions of expediency. This is recognised in English law as the common-sense apportionment of responsibilities in the constitution (Secretary of State for the Home Department v Rehman [2003] 1 AC 153). Lord Hoffmann wrote:
It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. (emphasis added)
At any rate, it seems to me that we are drawing inferences from the manner in which the government was established — which may not have been spelled out in specific words. It is not to say that the Constitution is a “living document” and rights arise from its various penumbras etc. Rather, we are talking about fundamental concepts and principles that govern relations between the branches of government.
The Constitution clothes the President with immense powers. That power cannot be exercised meaningfully (& without fear) if it can be second guessed by lawyers at the Department of Justice after the President finishes his term. This doesn’t make the President “above the law”. Rather, it protects the effective functioning of the government which, as Justice Roberts argued, was a “public interest” of the highest importance.
In my view, the presidency would probably never be the same if immunity (properly defined) is curtailed, even slightly. We have seen the consequences of the reduction in the police’s qualified immunity in the US ... and they become risk-averse. And, apropos the state of US politics, we all know that once one side can “get” the President successfully, the other side will make sure to take advantage just as soon as they retake power.
Justice Robert’s rationale thus stems from (1) the structure of the Constitution and the (2) effective and proper functioning of the Executive (which may otherwise be impeded).
Although imperfect, if a President cannot be impeached for
conduct while in office, it is a very slippery slope to believe that he can then be
prosecuted for the same conduct after he leaves office. Once a President is out of office, he is no longer subject to a qualified immunity. For the acts undertaken while in office, the “remedy” was impeachment. Since an impeachment is a divestiture of official power of a bad actor, I don’t see why they cannot be prosecuted afterwards too. Even so, since his successor becomes functionally immune, he can cause the predecessor to be prosecuted for acts taken while in office — whether or not those acts were legitimately criminal. Impeachment must remain the proper remedy for Presidential misbehaviour — its ineffectiveness, so far, notwithstanding.
In some respect, it may be argued that there is no need for a specific immunity clause because it is obvious from the impeachment clause that it is the default “remedy”. Permitting otherwise would subject Presidential authority to an ever-present risk of prosecution in a manner not authorised in the Constitution.
Finally, a question comes up about whether it is justified to extend a presumed immunity for actions within the “outer ambit of executive authority”. I suspect this is because the President’s “official actions” are much larger and broader and may entail prerogatives established under the Constitution and other laws. I think the Supreme Court was probably correct to recognise this, and attach a presumption.
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Interesting column by Randy E Barnett at the WSJ on the eroding originalism of recent Supreme Court judgments. He noted that the judgement of Trump v United States was a departure from originalism.
