Presidential Immunity

Abstract

Trump v. United States, the Supreme Court faced a novel question of whether a former president enjoyed immunity from criminal prosecution for actions that he took while holding the office of the presidency. In a 6-3 decision, the Court held that in some circumstances, the president did enjoy such immunity. The Court’s opinion left many questions unresolved and under explained in ways that will be unsatisfying to observers and confusing to the lower courts.

The Court distinguished between official and unofficial acts, holding that former presidents enjoyed no immunity for the latter. In the context of official acts, the Court distinguished between acts within the president’s “core” constitutional powers, which enjoy absolute immunity, and acts within the outer perimeter of the president’s legal authority, which enjoy presumptive immunity. It decisively rejected Trump’s claim that a former president is immune from criminal prosecution unless he was first convicted in an impeachment trial.

The opinion has the trappings of a functionalist analysis, but it does not carry through with the balancing framework that the Court has deployed in separation-of-powers cases in the past and refuses to provide answers to key questions that courts would need to know to resolve the Trump litigation as well as potential future cases. In her concurring opinion, Justice Barrett offers a better framing of the issues at stake in the case, and if the majority had taken more of that framing on board it might have avoided some of the reaction of the dissenting justices and of outside critics.