Are presidents immune from criminal prosecution? For the most part yes, according to the Supreme Court. The justices handed a victory to former president Donald Trump when they ruled in a landmark decision Monday that he has immunity from criminal prosecution for any “official” act he took while in the Oval Office. However, the ruling also stated presidents still can be found criminally liable for “unofficial” acts.
The justices voted 6-3 vote along ideological lines, with all three justices who were nominated by Trump siding with the former president. Notably, the Court ruled that the acts for which a president is immune from criminal charges cannot be used as evidence during trial on other matters. This clarification will certainly make it harder for federal prosecutors who charged Trump in connection with his attempt to overturn the results of the 2020 election, which resulted in the January 6 riot at the U.S. Capitol. Now, the judge presiding over that trial will determine which, if any, of Trump’s actions qualify as part of his official duties and are thus exempt from prosecution.
I spoke with Harold Krent, a constitutional-law expert and professor at the Illinois Institute of Technology’s Chicago-Kent College of Law, to find out exactly what this ruling means for the criminal cases against Trump specifically and for the powers of the president generally.
Can you break down what this case was about?
This case arose out of the special counsel’s indictment against ex-president Donald Trump for his activities in relation to the January 6 insurrection. In his defense, Trump said he was immune from anything he did as the president. That started the question of to what extent a president should be immune from the criminal process for the acts taken in his capacity as president of the United States.
Has this question been before the Court before?
This question has never been before the Court. In the 1980s, the Court decided that a president should be absolutely immune from any civil-damages claims or acts taken within the outer perimeter of his authority as president. One of the issues in this case is how to compare criminal immunity to civil immunity. Should it be broader or more narrow? And the Court concluded that criminal immunity is somewhat more narrow than the civil immunity that it had recognized before.
What else did the Court say in its ruling today?
The majority came down with a number of line-drawing exercises to try to give guidance to the lower court about what part of the indictment that the special counsel had filed can stay, and what needs to be either changed or dismissed because it would be inconsistent with the immunity they recognized of the president. First, the Court held that the president is absolutely immune from any criminal liability for any exercise of core powers. For core power, they probably meant something like international relations and the pardon power. So if the president decides to order a drone strike to assassinate a U.S. citizen, it would be immune from criminal liability.
Then the Court said that in terms of private acts — such as what efforts President Trump may have taken to be reelected — he may be liable depending upon the facts and circumstances. Much of this case against President Trump includes what he did as an individual hoping for reelection, but it merges with what he did in his official responsibilities. The Court goes on to say, “Well, he engages in tweets that can be official conduct of the president. If he gets advice from the Justice Department, that can be something he took in his capacity as a president.” The part that is probably most controversial is that the Court says the prosecutor cannot use official acts — such as his discussions with the attorney general and others — to show his intent to violate the law as a candidate running for reelection or trying to subvert the electors’ count. On the one hand, they say yes, he’s not actually immune for what he did. But on the other hand, they say the prosecution can’t use evidence that relates to his interactions with other government officials to help prove he violated the law. Line drawing is not easy, but I think that the Court bent over backward to make it more difficult for prosecutors even where it was possible for them to prove the case.
Justice Sotomayor wrote in her dissent that the majority opinion would allow the president to order the assassination of a political rival, organize a military coup to remain in power, and take a bribe in exchange for a pardon with impunity. What do you make of that?
She is on solid ground in criticizing the majority for how they applied the principles. I think there should be absolute immunity for some things, no immunity for others, and in the middle, there should be some kind of balancing test. But the Court doesn’t really provide a balancing test for those middle actions. The example of the SEAL Team is a great one because it has this idea of public authority — he’s head of the military — but he’s using motivations that are private to create a crime. That’s where the majority fell down, in not understanding that there has to be some kind of balance in that area, short of these core powers that should be off limits. For instance, how clear was the criminal-law violation? To what extent is there clear evidence of the motive of illegality? The president already has so much power, so I think there has to be some greater balance than the Court recognized between the need for some immunity, which I agree with, and “You shouldn’t be able to prosecute a president.”
Can you explain a little more why you think the president should be criminally immune in some cases?
I don’t find this to be particularly persuasive, but Justice Sotomayor is correct in saying that there’s no immunity in the Constitution. In fact, there’s a speech-and-debate clause which gives members of Congress immunity, but nothing comparable for the president. I think that the immunity doctrines have grown up over the last 250 years in a lot of different areas, recognizing that public officials can’t always do their job if they can be sued civilly or punished criminally for actions they take. Our leaders have to make very tough decisions, and you don’t want to deter effective governance by the fear of having somebody after the fact say, “Oh, you violated criminal law.” That’s the genesis of immunity, to try to preserve effective governance in tough times. So I am empathetic toward having some kind of immunity, but I think that the barriers that were recognized by the Court in this decision are just too high.
Is there anything Trump can still be prosecuted for at this point? How does this ruling affect the outstanding criminal cases against him?
In terms of the timeline, this is gonna go back to trial court to allow both the prosecution and defense to go through the indictment and to see what’s left. Not much of it will be, but there’ll be something left. The question is whether the prosecution can go forward based upon that part of the indictment which remains after applying the principles that were articulated by the majority. There certainly will be no trial before the election. The ability of the prosecution to win a case, and to find that the president did commit a crime, is significantly less than it was before because of the restrictions placed by the majority, but there’s still enough there that he can be prosecuted. Of course, this decision has nothing to do with the New York case where President Trump will be sentenced in the next few days, and it’s got nothing to do with the Georgia case either. This only applies to federal cases.
What, if anything, would stop a sitting president from interfering with the results of an election at this point?
I mean, what happened last time? There were state officials who didn’t go along with what the president asked them to do. There’s always the question of whether the military will comply with what they consider to be clearly an illegal order of the president in a different context. We still have some checks, both from federalism and state power and from what Congress might do or what the military might do. In terms of criminal law, there is still the possibility President Trump could be convicted for what he did in the days leading up to January 6. But there’s a lot less room for the prosecution to maneuver.
This interview has been edited and condensed for length and clarity.
