Donald Trump is challenging a federal indictment for trying to overturn the 2020 election results, arguing that the former president can only be charged with “official conduct” if he is first impeached by the House and convicted by the Senate for the same conduct. Being prosecuted. The U.S. Supreme Court, while rejecting the claim last week, left open the possibility that the former president could not be prosecuted even then.
These seemingly contradictory conclusions reflect a ruling that could have broad implications for presidential accountability. While Justice Amy Coney Barrett agreed in part that the “constitutional protections from prosecution” recognized by the court are “narrow” when “properly conceived,” the decision will make it difficult to hold the former president criminally accountable , not even possible.
Both sides of the case agreed that former presidents can be prosecuted for “unofficial conduct,” Chief Justice John Roberts affirmed in his majority opinion. But Roberts added that the former president was “absolutely immune from criminal prosecution for conduct that fell within the exclusive scope of his constitutional authority.”
It’s unclear exactly what conduct falls within the “exclusive scope,” but Roberts said Trump’s conversations urging the Justice Department to investigate his false claims of systemic election fraud clearly do. Adding to the uncertainty, a majority said even “official actions” outside the “core” of the president’s responsibilities are “at least worthwhile.” Presumptive Immunity from criminal prosecution,” which the government can only overcome if it “can demonstrate that imposing a criminal prohibition on the conduct would not pose a ‘danger of infringement of the powers and functions of the executive branch.’
The stringency of this test, coupled with the lack of clarity as to which conduct is “official”, suggests that the distinction between “absolute” and “constructive” immunity can easily disappear in practice. Even if that proves to make sense, the court said absolute immunity may ultimately be needed all Conducting activities “on the periphery” of the president’s “official responsibilities.”
Following the majority’s reasoning, Justice Sonia Sotomayor, in a dissenting opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, warned that when the president “uses “will be immune from criminal prosecution” while under their official authority. Sotomayor said that shield would extend to a president who “orders Navy SEAL Team 6 to assassinate political opponents,” “organizes military coups to retain power,” and “accepts bribes in exchange for pardons.” Use of forged evidence in criminal cases.
Roberts did not explain why immunity would not apply in this case, but instead accused Sotomayor of “spreading fear based on extreme assumptions.” He dismissed the threat posed by a lawless president as he focused on the alleged need to protect “an energetic executive” from the threat of criminal liability.
However, as Sotomayor noted, the president has long acted under such threats. “To date, every sitting president has believed that he or she faces the threat of criminal liability at the end of his term and yet has bravely carried out his duties,” she wrote.
Former President Richard Nixon, who did not clearly lack executive energy, apparently shared this long-held assumption. After resigning amid the Watergate scandal, Nixon accepted a pardon from his successor, Gerald Ford, covering any federal crimes he might have committed as president.
Those crimes, according to the proposed articles of impeachment, include many conduct deemed “official” in Roberts’ book, such as “false or misleading public statements,” abuse of the CIA and IRS and interference with FBI investigations. If Nixon was immune from prosecution for these actions, his pardon is somewhat puzzling.
As this episode illustrates, we don’t need to look beyond “extreme assumptions” to understand the dangers of a president who feels unconstrained by the law. In the real world, the risk of presidential paralysis pales in comparison to the risk of presidential impunity.
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