Under President Joe Biden, the U. S. Attorney General appointed a special federal prosecutor to investigate former President Donald Trump’s actions related to the January 6, 2021, assault on the U. S. Capitol. The appointment was made pursuant to regulations that freed the prosecutor from standard supervision by the Attorney General, in order to minimize the possibility of political influence. Jack Smith, who was appointed, indicted Donald Trump on several charges related to his attempts to subvert the outcome of the 2020 election. Trump immediately challenged the indictment, asserting that the U. S. Constitution provides presidents with complete immunity – even after leaving office – from criminal prosecution for crimes committed in office through their official acts.
The consensus view among scholars, and official position of the Department of Justice (DoJ), has long been that a sitting president cannot be indicted while in office. But it is fair to say that few scholars, or federal judges on lower courts, held the view that former presidents were immune from criminal charges after leaving office for crimes committed while in office. While disagreements among U. S. legal scholars on many questions of constitutional law are nearly as stark as political disagreements among the polarized U. S. electorate, presidential immunity was not one of those questions. Prior to this case, few scholars on the left or right saw a plausible case for an interpretation of the Constitution that provides broad criminal law immunity for former presidents.
The U. S. Supreme Court, however, did. In Trump v. United States, the Court concluded that a former president enjoys complete immunity from prosecution for the exercise of “core constitutional powers” while in office, and a strong presumption of immunity for “all his official acts” – including those “within the outer perimeter of his official responsibility” – whether pursuant to constitutional or statutory authority. A former president lacks immunity only for private, non-official acts. Yet even for such crimes the Court erected barriers that make prosecution difficult, most notably that evidence of official acts cannot be used to prove crimes committed through unofficial acts.
In Part II, I consider the Court’s reasoning for its decision and scholars’ reactions to it. Part III then offers some assessments of the decision’s likely practical significance. In brief, there are good reasons to think that Trump’s recognition of criminal immunity for presidents will have little practical importance, given other barriers to prosecuting presidents and the likelihood that the prospect of criminal liability has little deterrent effect on presidential decision-making. Symbolically, presidential immunity is troubling, but it may matter little to the larger goal of ensuring that presidential conduct accords with the rule of law. More consequential, however, is the Court’s embrace of an exceptionally strong conception of unitary executive power. And the Court gave little guidance on how to distinguish between “core” presidential powers, other official acts, and private conduct.