On July 1, 2024, the U.S. Supreme Court released its opinion in Trump v. United States. The six-Justice majority concluded that the President of the United States is entitled to at least a presumption of immunity from criminal prosecution for all his official acts as President. However, that presumption can be overcome for certain official acts.
Specifically, for actions “within [the President’s] exclusive sphere of constitutional authority,” the Court concluded “that the President is absolutely immune from criminal prosecution.” The types of acts that fall within this category are those that the Constitution unambiguously assigns to the President and to the President alone, including the pardon power, the appointment and removal of executive branch officials, and the recognition of foreign governments. This subset of official acts is now off-limits for criminal prosecutions.
For actions that are “within the outer perimeter of [the President’s] official responsibility” but not the types of core constitutional powers described above, the Court held that the President is entitled to “at least presumptive immunity from criminal prosecution.” Reasoning from precedents that protected former Presidents from civil liability in lawsuits focused on their official conduct, the majority explained that potential criminal liability poses an even greater risk of improperly influencing presidential decision-making than civil liability. A default presumption of immunity is therefore necessary “to ensure that the President can undertake his constitutionally designated functions effectively, free from undue pressure or distortions.” Nevertheless, that presumption can be overcome if “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.” The Court also reiterated, consistent with its precedent, that a President may still be criminally prosecuted for his unofficial acts.
Applying these principles to the specific charges the Special Counsel filed against former President Trump in this case, the Court held that President Trump’s interactions with Department of Justice officials concerning investigations into election fraud and the potential replacement of the Acting Attorney General could not form the basis of any criminal charge because these activities constitute core constitutional powers of the President. With regard to all other conduct referenced in the Special Counsel’s indictment, the Court referred these allegations back to the District Court to determine whether the actions in question were “official” and therefore presumptively immune, or “unofficial” and therefore prosecutable. The Court also rejected President Trump’s argument that a former President cannot be criminally prosecuted unless he is first impeached and removed from office by the U.S. Congress.
Although Justices Thomas and Barrett both joined the majority in the core holdings outlined above, they each wrote separately to address different points. Justice Thomas filed a concurring opinion noting that it does not appear that Congress ever created an Office of Special Counsel via legislation, which would mean that Jack Smith’s appointment as Special Counsel by Attorney General Garland is unconstitutional. Justice Barrett filed a separate concurring opinion to explain that she agrees with the three dissenting Justices that a President’s official acts can still be used as evidence in a criminal prosecution targeted at separate unofficial conduct, even if they cannot form the basis for separate criminal charges.
Holtzman Vogel filed an amicus brief in this case on behalf of Senator Steve Daines and the National Republican Senatorial Committee (NRSC) arguing that the more serious consequences of criminal prosecution warrant greater immunity protection for Presidents than in the civil liability context. The brief warned that, “[a]rmed with the D.C. Circuit’s new precedent abrogating presidential immunity for official acts, each subsequent criminal prosecution of a former president will be easier than the first.” The Supreme Court’s opinion imposes appropriate guardrails on future prosecutions that will permit Presidents to make difficult decisions about official action without fear of partisan prosecutions, while still allowing for criminal liability for conduct that is unconnected to a President’s official duties.
The case is now returned to the District Court for further fact-finding on whether the specific conduct of President Trump referenced in the indictment constitutes “official” or “unofficial” acts. Because this determination will inevitably be time-consuming, it is now highly unlikely that any criminal trial in this matter will occur before the November 2024 presidential election.
