Supreme Court of the United States (SCOTUS): In a monumental decision where for the first time in American history, the SCOTUS had to consider a former US President’s (Donald Trump) immunity from criminal prosecution for official acts during his Presidency; the Full Bench of the Court with a ratio of 6: 3 held that, under US constitutional structure of separated powers, the nature of Presidential power entitles a former President to Absolute Immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
“Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office”.
Background and Legal Trajectory: Former US President Donald Trump had been indicted by a federal grand jury on four counts for conduct that occurred during his Presidency following November 2020 Presidential Elections.
The indictment alleged that after losing that election, Donald Trump conspired to overturn it by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results. Trump moved to dismiss the indictment based on Presidential immunity, arguing that a President has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, and that the indictment’s allegations fell within the core of his official duties.
The District Court denied Trump’s motion to dismiss, holding that former Presidents do not possess federal criminal immunity for any acts. The D. C. Circuit affirmed. Both the District Court and the D. C. Circuit declined to decide whether the indicted conduct involved official acts.
Court’s Assessment (Majority Opinion): The majority comprised of John Roberts, CJ.*, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett, JJ.
The majority observed that the instant case is the first criminal prosecution in American history of a former President for actions taken during his Presidency. It was noted that determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.
The majority was of the view that at least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity.
The majority stated that Article II of the US Constitution vests “executive Power” in “a President of the United States of America”. The President has duties of unrivaled gravity and breadth. His authority to act necessarily stems either from an Act of Congress or from the Constitution itself. In the latter case, the President’s authority is sometimes “conclusive and preclusive”. When the President exercises such authority, Congress cannot act on, and Courts cannot examine, the President’s actions. Therefore, the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
However, it was pointed out that not all of the President’s official acts fall within his “conclusive and preclusive” authority. The reasons that justify the President’s absolute immunity from criminal prosecution for acts within the scope of his exclusive constitutional authority do not extend to conduct in areas where his authority is shared with Congress.
To determine the President’s immunity in the afore-stated context, the Court delved primarily into the Framers’ design of the Presidency within the separation of powers, precedent on Presidential immunity in the civil context, and criminal cases where a President resisted prosecutorial demands for documents. It was noted that Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Framers vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.”
Relying on relevant precedents appreciating the “unique risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” the Court pointed out that it had time and again recognized that Presidential immunities and privileges rooted in the constitutional tradition of the separation of powers and supported by history. The majority emphasised that criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession. “The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under a pall of potential prosecution”.
The majority thus firmly opined that principle of Separation of Powers necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. Such 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. “At 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.”
Vis-a-vis a President’s unofficial acts, the majority held that there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decision making is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct.
The majority stated that in dividing official from unofficial conduct, Courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.
Vis-a-vis the charges levied against former President Trump, the majority perused the allegations and noted that the Government did not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s use of official power. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. The Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime.
The majority stated that, “The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials”.
Vis-a-vis attempted enlisting of former Vice-President to use his position in the certification proceedings that transpired on 06-01-2021, the majority pointed out that, whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Presiding over the January 6 certification proceeding at which Members of Congress count the electoral votes is a constitutional and statutory duty of the Vice President. “The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct”.
Regarding rebuttal of presumption of immunity, the majority pointed out that it is the Government’s burden to rebut the presumption of immunity. The Court therefore remanded the proceedings to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.
Regarding various allegations in the indictment concerning Donald Trump’s conduct in connection with the events of January 6 itself, wherein alleged conduct largely consisted of Trump’s communications in the form of tweets and a public address; the majority stated that the President possesses extraordinary power to speak to his fellow citizens and on their behalf, so most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. “There may, however, be contexts in which the President speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of “content, form, and context” will necessarily inform the inquiry”.
Concerning Donald Trump’s assertion seeking a far broader immunity by contending that the indictment must be dismissed because the Impeachment Judgment Clause requires that impeachment and Senate conviction precede a President’s criminal prosecution; the majority noted that the text of the Impeachment Judgment Clause does not address whether and on what conduct a President may be prosecuted if he was never impeached and convicted. Historical evidence likewise lends little support to Trump’s position.
Finally, the majority emphasised that the instant case posed a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies.
[Donald J. Trump v. United States, No. 23—939, decided on 01-07-2024]
*Opinion of the Court delivered by Justice John Roberts, Chief Justice
