Election 2020 Redux: Presidential Immunity Question Before the Supreme Court

In what may be one of the most important and historic cases the U.S. Supreme Court has ever handled, the court heard almost three hours of oral arguments Thursday in Trump v. United States, the presidential immunity case.

In a spirited discussion in the final case to be heard by the court before its summer recess, former Deputy Solicitor General Michael Dreeben, arguing on behalf of special counsel Jack Smith, and John Sauer, arguing on behalf of former President Donald Trump, answered an intense series of questions from all of the justices on whether a former president enjoys immunity from criminal prosecution for official actions he took while he was president.

Trump was not in the audience at the Supreme Court because the judge in his New York criminal prosecution, Juan Merchan, refused to recess the trial Thursday and required Trump to be present in his courtroom.

In his opening statement, Sauer pointed out that the court’s decision in this case would have “implications” that “extend far beyond the facts of this case.” Without such immunity, said Sauer, “there can be no presidency as we know it,” because presidents would be hesitant to carry out their duties in many different situations out of fear of potential prosecution once they leave office.

That immunity, argued Sauer, is based on the Executive Vesting Clause and the corresponding principle of separation of powers, citing both Benjamin Franklin and George Washington in support of that proposition.

Much of the questioning was about how to differentiate between official and personal acts of the president. The government has insisted in its briefing that a president is not entitled to immunity from prosecution even for his official actions, and when asked that question directly by Justice Clarence Thomas, Dreeben answered: “No immunity.”

But Dreeben then qualified his answer by saying that presidents have some “special protection,” meaning that if a former president was criminally prosecuted, he could raise as a defense that such a prosecution would interfere with the president’s core functions as outlined in Article II of the Constitution.

While Sauer insisted that presidents enjoy immunity from criminal prosecution for their official acts, he admitted they do not have immunity for their personal actions. The sole exception to official-act immunity, said Sauer, is if a president is impeached for particular conduct, since the Impeachment Judgment Clause specifically says that a president who has been “convicted” by the Senate in an impeachment trial is “subject to Indictment, Trial, Judgment, and Punishment, according to Law.”

However, even then, insisted Sauer, the government must establish that Congress clearly intended the criminal law in question to apply to the president.

Thomas got to the heart of the official act vs. personal act issue when he asked Sauer how the court should determine what is or is not an “official act” of the president, a question that was repeated in various forms by other justices.

Sauer repeatedly referenced the court’s 1982 decision in Nixon v. Fitzgerald, in which the court held that a former president enjoys absolute immunity from civil actions for all acts he undertook within “the outer perimeter of his authority.” Sauer pointed to prior case law in arguing that an objective standard should be used to make such an assessment.

The justices asked a series of hypothetical questions geared toward trying to distinguish between personal and public actions when both are mixed together, such as a president taking an illegal bribe for the appointment of an ambassador, an issue raised by Chief Justice John Roberts, or a president creating false documents or ordering the assassination of a rival by the military.

Justice Sonia Sotomayor asked Sauer whether the president can order an official action for personal gain, to which Sauer said that the immunity for official acts does not “turn on the allegedly improper motivation” of the president’s action.

Moreover, he argued, any personal motive that the president may have had for undertaking that action should be out of bounds for a court to examine.

That last hypothetical about using the military for assassinations or to stage a coup was brought up more than once, with SEAL Team 6 specifically mentioned. That is one of the absurd, extreme hypotheticals that has never occurred in our entire history and is not something that should be realistically feared, no matter how the court rules in this case.

Indeed, Justice Samuel Alito made it clear that such questions were not designed to “slander” SEAL Team 6, citing the honorable history of our military and the fact that it would violate the Uniform Code of Military Justice to obey such a blatantly unlawful order.

Sauer said that if the court sets out a test for distinguishing between official and personal acts of the president, then the case should be remanded to the lower court to make such a determination.

In response to a series of questions by Justice Amy Coney Barrett, Sauer acknowledged that at least some of the alleged criminal acts by Trump would be personal acts, such as his use of private lawyers to file false statements in his election contests. 

Some of the questions pertained to the specifics of the federal indictment in this case. Sotomayor, for example, asked whether Trump had a right to create what she called “fake” electors. Sauer answered that there was nothing illegal about creating an alternative slate of electors, citing prior historical precedents such as the 1876 election, when several states had two different sets of electors due to claims about fraud and other irregularities.

Dreeben kept repeating that there are many protections against abusive criminal prosecutions, including layers of approval needed at the Justice Department, the fact that indictments must be returned by a grand jury, the various procedural protections afforded to criminal defendants, and the layers of review by the trial court and appellate courts.

Alito asked questions suggesting that he was skeptical how much protection those safeguards would actually provide. And Justice Brett Kavanaugh asked Dreeben about “creative prosecutors”—a polite way of saying “abusive”—using a “vague statute” to go after a former president. 

Citing the charges against Trump for obstruction and defrauding the United States, Kavanaugh suggested that such charges could be “used against a lot of presidential activities.” Essentially, Dreeben’s answer was for all of us to trust in the good faith of the Justice Department.  

There was a lot more to the lengthy questioning and arguments that were made. The liberal justices seemed much more inclined to side with Smith’s position of no immunity for official actions, while the generally more conservative justices seemed more interested in basing some form of immunity on distinguishing between official and personal actions, providing some layer of protection for the former, but not the latter. But the key to such a ruling would be how to make that determination.

Giving a lone federal judge and a handful of jurors in a federal prosecution the ability to decide whether a president acted within his official capacity would give extraordinary power to a small group of unelected individuals, without even considering potential indictments by local prosecutors in the more than 3,000 counties across the country.

Any test the Supreme Court comes up with should be, as Sauer argued, an objective test, not a subjective one that allows individual courts to question the motives of the former chief executive of the United States.

There is only one thing we know for sure about how these issues will be resolved: We will get a decision in the case by the end of June.