Presidential Immunity: Before and After Trump

Abstract

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President—the “highest” and most powerful of all government officers—is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former Presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article unpacks the various presidential immunities and assesses their collective significance for the basic project of constitutionalism: putting the government under law. It begins by asking what it has meant as a historical matter for the President to be “under law.” Though the Court has immunized former Presidents from damages liability, it has nevertheless routinely allowed suits for injunctive and declaratory relief challenging presidential actions to proceed. And while the Department of Justice had effectively conferred a temporary immunity from criminal prosecution on sitting Presidents, the near-universal assumption was that a former President could be indicted for illegal acts.

Last Term’s decision in Trump v. United States unsettles this balance. Most obviously, it immunizes former Presidents from criminal prosecution for a wide range of official conduct. That leaves no judicial remedy in place—criminal or civil—for completed presidential wrongdoing. The decision is also troubling for what it portends. Several aspects of the opinion could affect civil suits seeking injunctive relief and could breathe new life into a mostly moribund Reconstruction Era case, Mississippi v. Johnson, in which the Court disclaimed the power to “enjoin the president in the performance of his official duties.” Suits for injunctive and declaratory relief have been the backbone of presidential accountability to law, and to grant immunity in those suits could leave the President impervious to judicial oversight in many exercises of power. The fix is straightforward. If forced, the Court should confirm that the President is not immune from injunctive or declaratory relief. Congress can and should also act to restore accountability in other contexts. This is important both practically and symbolically for confirming that all officers of government—“from the highest to the lowest”—are indeed bound by law.

Keywords: Presidential Immunity, Trump v. United States, Youngstown, Steel Seizure, Mississippi v. Johnson, United States v. Nixon