Takeaways From the Presidential Immunity Decision

Civil Rights Policy Brief #227 | By: Rodney A. Maggay | July 12, 2024

Featured Photo: chicagotribune.com

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On July 1, 2024 the United States Supreme Court handed down the case Trump v. United States. The case was popularly known as the presidential immunity case. After Mr. Trump lost the 2020 presidential election to Joe Biden, he was indicted in four separate criminal cases. On August 1, 2023 a federal grand jury in Washington, D.C. indicted the former president for conspiring to overturn the 2020 election, obstructing the counting and certification of the electoral votes and spreading knowingly false claims of election fraud. Initially, federal district judge Tonya Chutkan rejected Trump’s claims of presidential immunity. An appeal was made to the United States Supreme Court and accepted. The Court heard oral arguments on April 25, 2023. In a highly anticipated decision, the Court handed down its decision on the last day of the 2024 term, a 6 – 3 ruling that approved of presidential immunity when the President is performing his official duties while also deciding that a president has no immunity for non – official duties. LEARN MORE

Analysis:

The presidential immunity case was expected to be a blockbuster case and when it finally was handed down it did not disappoint. The case was always going to be controversial. While there are notable points to highlight, a closer examination of the decision reveals a decision that did not clarify an important legal concept but instead may have muddied the issue of presidential immunity even more.

Chief Justice John Roberts’ majority opinion approached the issue by categorizing acts taken by a president into two categories – official acts and un – official acts. In a criminal prosecution case, the Court attempted to balance the competing interests of preventing intrusion into a functioning Executive Branch and the compelling public interest in a fair and effective enforcement of the laws over everybody, including a president. The Court reasoned that a president has presumptive immunity because a chief executive must have the space to carry out his constitutional duties without undue caution that he might be criminally prosecuted for his acts later. And after declaring this, the Court declared that a President does not have immunity for un – official acts. This framework is a logical extension of prior cases (e.g., the Nixon v. Fitzgerald case that held a president is also immune from civil suits) but the Court created confusion when it refused to issue a legal rule that would guide lower courts as to how to delineate between official acts and un – official acts.

The Supreme Court often issues legal rules to provide guidance to lower courts as to how to deal with common issues and fact patterns. Free speech cases have the three tiers of rules that courts use to analyze speech cases – strict scrutiny, intermediate scrutiny and the rational basis test. The Reasonable Expectation of Privacy test under the Fourth Amendment is used to determine if a search by law enforcement is reasonable and whether it must conform to the limitations of the Fourth Amendment.  When the Court declared that it must be first determined whether a president’s acts were official or un – official, it should have also put forth rules for lower courts to use to determine that. It did not in this case. It simply stated that lower courts should make those fact based determinations themselves while stating that a future president is deemed presumptively immune first unless a prosecutor can prove that the president was performing a non – official act.

But this is where it gets tricky and complicated and provides a benefit to Donald Trump. If a president can merely declare he is acting officially, does that end the inquiry? That would seem to make any president judge and jury over his own actions and with no way to hold the person in the office accountable. Trump’s actions during the events of January 6th and in the days after could conceivably be seen as a president trying to perform the duties of the presidency in fighting election fraud, thus making Trump immune. But the facts of Trump’s election fraud “Big Lie” campaign clearly demonstrate that the former President was breaking the law and trying to obstruct Members of Congress from performing their constitutional duties in collecting and certifying electoral ballots.

Surely a president should not be immune from his acts in preventing the Constitution from being performed in the way it was designed. Not allowing the Constitution to proceed in the way it has been laid out or government officials to perform their own duties now makes, under the majority opinion, the president a “king above the law” with limited options to hold a president accountable. And for Donald Trump’s four criminal cases, it gives him an opening to claim that everything he did regarding the 2020 election was an official act when in reality there is good strong evidence that he was not acting in an official capacity or that he was acting in the best interests of the American people. He was trying to overturn a free and fair election that he lost. Presidential immunity should not mean one gets a free pass at ignoring the voice of the American people at the ballot box.

In a concurring opinion  Justice Amy Coney Barrett actually provides a legal test that could be used to determine a president’s criminal liability for some acts taken in office. It is a two – step analysis that would see if there is a relevant federal criminal statute and if applying it would intrude on the functions of the Executive Branch. This would have been a completely acceptable legal rule yet the majority chose simply to ignore it. This is why the case is so frustrating – one Justice (and one considered a conservative vote on the bench) offered a way to hold a president accountable yet the majority decided to take steps to instead make it more difficult to hold a President accountable.

What’s next for Trump and his four criminal cases? Despite what some news sites have reported he cannot have the cases instantly dismissed. The decision says that courts now must hold hearings and determine which acts taken by Trump are official and which are non – official, a very tedious and likely lengthy prospect. Holding these hearings  stretches the trial process out many months into the future what must be done before a trial can even be held. Maybe Trump might be found guilty in any one of his criminal cases but because additional hearings must be held first to determine and categorize which of his acts are official and which are not, Trump can strategically delay some if not all of his cases. And with possible appeals it is conceivable some of his cases won’t be resolved until the 2030’s. This is the immediate result of this presidential immunity case that didn’t have to be decided this way. LEARN MORE

Engagement Resources

• SCOTUS Blog – background info and timeline of the case leading to the presidential immunity Supreme Court case.
• ABC News – article with predictions on how the ruling will impact Trump’s ongoing criminal cases.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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