On July 1, 2024, the U.S. Supreme Court decided Trump v. United States, No. 23-939, holding that former Presidents are absolutely immune from criminal prosecution for official acts that arise within their “conclusive and preclusive constitutional authority.” Moreover, the Court held that there is a presumption of immunity for all official acts, including those that do not arise out of the President’s conclusive and preclusive authority. By contrast, the Court held, there is no immunity for unofficial acts.
On August 1, 2023, former President Donald J. Trump was indicted on four counts arising from the investigation into the January 6, 2021, attacks on the U.S. Capitol. Mr. Trump moved to dismiss the indictment, arguing that he was absolutely immune from prosecution because all of the conduct alleged in the indictment fell within the core of his official duties as President.
The district court rejected that immunity claim, holding that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office. The D.C. Circuit affirmed.
In a decision by Chief Justice Roberts, the U.S. Supreme Court vacated the D.C. Circuit’s decision and remanded the case to the district court for further proceedings. In so doing, the Court described three categories of presidential conduct. First, it held that a former President is “absolutely immune” from prosecution for those actions that fall “within his conclusive and preclusive constitutional authority.” Second, acts that are outside the core of the President’s constitutional power but nevertheless fall within the outer perimeter of the President’s official responsibility are entitled to at least presumptive immunity from criminal prosecution. “Such immunity is required,” the Court explained, in order 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.” Third, the Court held that there is no immunity for unofficial acts, explaining that, when courts seek to separate official from unofficial conduct, they “may not inquire into the President’s motives,” and likewise may not “deem an action unofficial merely because it allegedly violates a generally applicable law.”
Applying those principles, the Court held that the indictment’s allegation that former President Trump had “met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud” implicated the former President’s “conclusive and preclusive” authority and that he was therefore immune from prosecution for those acts. The Court next considered the indictment’s allegations “that Trump and his co-conspirators attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceedings to fraudulently alter the election results.” Those acts, the Court concluded, were at least presumptively immune from prosecution, because they were official acts but not within the core of his constitutional authority. The Court remanded to the district court with instructions to assess whether that presumption could be rebutted on the specific facts presented by the indictment. Finally, the Court similarly remanded to the district to determine whether the allegations concerning “Trump’s interactions with…state officials, private parties, and the general public” and his written and oral communications with the public on, and in advance of, January 6, 2021, constituted official or unofficial acts.
The Court also held that, for any act that gave rise to presidential immunity, evidence of that act could not be admitted for collateral purposes, such as to show notice or knowledge of the falsity of a given statement. But that, the Court explained, would permit the government to do indirectly what it cannot do directly: invite the jury to examine acts for which a President is immune from prosecution.”
With that guidance, the Court remanded to the district court for further review of the indictment’s allegations and an assessment of whether the indictment contains sufficient allegations to support its charges once those allegations for which Trump is immune from prosecution are removed.
Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch and Kavanaugh joined in full, and in which Justice Barrett joined in part. Justice Barrett filed an opinion concurring in part. Justice Sotomayor filed a dissenting opinion, in which Justices Kagan and Jackson joined. Justice Jackson filed a dissenting opinion.
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