SCOTUS Weighs the Risk of Presidential Timidity Against the Risk of Presidential Impunity

Without "absolute immunity" from criminal prosecution for their "official acts," Donald Trump's lawyer told the U.S. Supreme Court on Thursday, presidents will be afraid to do their jobs. "If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision making precisely when bold and fearless action is most needed," D. John Sauer warned the justices during oral arguments in Trump v. United States. "Prosecuting the president for his official acts is an innovation with no foothold in history or tradition," he said, and it is "incompatible with our constitutional structure."

To the contrary, Justice Department lawyer Michael Dreeben argued, "every president from the Framing through Watergate" understood that he could be prosecuted for abusing his powers. Sauer's "novel theory," he warned, "would immunize former presidents [from] criminal liability for bribery, treason, sedition, [and] murder" as well as "for conspiring to use fraud to overturn the results of an election and perpetuate himself in power," as alleged in this case. "Such presidential immunity has no foundation in the Constitution," Dreeben said. "The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain."

Despite their diametrically opposed positions on the legitimacy of Special Counsel Jack Smith's election interference case against Trump, Sauer and Dreeben agreed on a few points. According to Sauer, former presidents can be prosecuted for "private acts," and they can be prosecuted even for "official acts" if they are first impeached and removed from office based on the same conduct. And according to Dreeben, former presidents cannot be prosecuted for decisions at the "core" of their constitutional authority, involving exclusive powers such as pardons, vetoes, appointments, and recognition of foreign governments.

Those concessions acknowledged competing concerns that the Court will have to weigh in deciding "whether and if so to what extent" a former president is immune from criminal prosecution for "conduct alleged to involve official acts during his tenure in office." While none of the justices dismissed Sauer's concern about politically motivated prosecutions, most of them seemed inclined to reject his maximalist solution to that problem.

Illustrating that discomfort, Justice Sonia Sotomayor raised a hypothetical that also came up when the U.S. Court of Appeals for the D.C. Circuit considered Trump's immunity claim, which a three-judge panel unanimously rejected in January. "If the president decides that his rival is a corrupt person and he orders the military…to assassinate him," Sotomayor asked Sauer, "is that within his official acts…for which he can get immunity?" That "could well be an official act," Sauer said.*

Sotomayor questioned that assessment. "He's doing it for personal reasons," she said. "He's not doing it, like President Obama is alleged to have done it [when he ordered drone strikes that killed American citizens], to protect the country from a terrorist. He's doing it for personal gain. And isn't that the nature of the allegations here, that [Trump is] not doing these acts [aimed at overturning the results of the 2020 presidential election] in furtherance of an official responsibility; he's doing it for personal gain?…Immunity says, 'Even if you did it for personal gain, we won't hold you responsible.'…How could that be?"*

Suppose "a president orders the military to stage a coup," Justice Elena Kagan said. "That might well be an official act," Sauer said, meaning he "has to be impeached and convicted before he can be criminally prosecuted."

Chief Justice John Roberts also seemed skeptical of the notion that characterizing a decision as an "official act" is enough to trigger immunity. "Let's say the official act is appointing ambassadors, and the president appoints a particular individual to a country, but it's in exchange for a bribe," he said. "Somebody says, 'I'll give you a million dollars if I'm made the ambassador to whatever.'"

Based on the Court's 1972 ruling in United States v. Brewster, Sauer said, "the bribe and the agreement to accept the bribe are not official acts. That's private conduct." Although "accepting a bribe isn't an official act," Roberts noted, "appointing an ambassador is certainly within the official responsibilities of the president," and that power is an essential part of the crime. "Giving somebody money isn't bribery unless you get something in exchange," he said. "And if what you get in exchange is to become the ambassador to a particular country, that is official; the appointment [is] within the president's prerogatives. The unofficial part is I'm gonna get a million dollars for it."

In response to questions from Justice Amy Coney Barrett, Sauer conceded that several of the acts described in Smith's indictment of Trump, such as enlisting private attorneys to "spread knowingly false claims of election fraud," to file a verification that "contained false allegations," and to "implement a plan to submit fraudulent slates of presidential electors," would qualify as "private conduct." But Sauer argued that the government cannot combine that evidence with information about "official" acts, such as conferring with the Justice Department and state legislators, to prove that Trump conspired to defraud the government, deprive Americans of their voting rights, or obstruct an official proceeding.

Sauer's argument for presidential immunity hinges largely on his reading of the Impeachment Judgment Clause. When Congress impeaches and removes a federal official, that clause says, "the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." According to Sauer, that means a former president cannot be prosecuted for officials acts unless he is impeached by the House and convicted by the Senate. Barrett noted two problems with that reading.

"There are many other people who are subject to impeachment, including the nine sitting on this bench," Barrett said, "and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn't say so?" In 1973, Sauer replied, Solicitor General Robert Bork "reviewed historical materials" and concluded that "the sequence is mandatory only as to the president."

Barrett noted that requiring impeachment and removal prior to prosecution could leave serious crimes unpunished. "What if the criminal conduct isn't discovered until after the president is out of office," she wondered, "so there was no opportunity for impeachment?" The Framers "assumed the risk of under-enforcement," Sauer said, when they created "structural checks" against incursions on executive power.

Barrett also echoed a "pretty compelling" point raised by Smith: Although Sauer says a president can be prosecuted after impeachment and removal, "you also say that these criminal statutes, unless they explicitly mention the president, don't apply to him." Barrett noted that only "a few" criminal laws meet that test. Under that requirement, she said, a president who was impeached and removed after ordering a coup still could not be prosecuted without "a statute that expressly referenced the president and made it criminal for the president."

Justice Ketanji Brown Jackson questioned Sauer's position that the idea of prosecuting former presidents is historically unprecedented. "What was up with the pardon for President Nixon?" she wondered. "If everybody thought that presidents couldn't be prosecuted, then what was that about?" Sauer replied that Nixon "was under investigation for both private and public conduct at the time."

Several justices expressed concerns about the implications of completely rejecting presidential immunity. Justice Neil Gorsuch raised the possibility that a president could be prosecuted for corruptly obstructing an official proceeding if he "leads a mostly peaceful protest sit-in in front of Congress because he objects to a piece of legislation that's going through." He suggested that the threat of politically driven prosecutions might encourage presidents to pardon themselves just before leaving office, which would force the courts to address the issue of whether such pardons are legitimate.

"Like Justice Gorsuch, I'm not focused on the here and now of this case," said Justice Brett Kavanaugh. "I'm very concerned about the future." He said the case "has huge implications for the presidency, for the future of the presidency, for the future of the country." Kavanaugh suggested that the experience with vexatious presidential investigations by independent counsels illustrates the danger of "relax[ing] Article II a bit for the needs of the moment," adding, "I'm worried about [a] similar kind of situation applying here." He echoed Sauer's warning about tit-for-tat prosecutions, saying "when former presidents are subject to prosecution…it's going to cycle back and be used against the current president or the next president and the next president and the next president after that."

The D.C. Circuit thought "the risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight." It noted that "prosecutors have ethical obligations not to initiate unfounded prosecutions" and that "there are additional safeguards in place to prevent baseless indictments, including the right to be charged by a grand jury upon a finding of probable cause." But as Justice Samuel Alito noted, prosecutors are not always ethical, and grand juries tend to give prosecutors what they want, as reflected in "the old saw about indicting a ham sandwich."

Alito worried about the consequences of inviting prosecutors to criminalize political differences. "If an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent," he asked Dreeben, "will that not lead us into a cycle that destabilizes the functioning of our country as a democracy? We can look around the world and find countries where we have seen this process, where the loser gets thrown in jail."

At the same time, Alito seemed skeptical of Sauer's solution. "You believe that immunity from criminal prosecution is essential for the proper functioning of the presidency," he noted. But he wondered "whether the very robust form of immunity that you're advocating is really necessary in order to achieve that result."

Although "a president could say, 'I'm using an official power,'" Alito said, he might use it in "an absolutely outrageous manner." He suggested an alternative rule that would ask whether there was "no plausible justification" for a presidential act. For example, he said, "one might argue that it isn't plausibly legal" to order a military hit on a political opponent.

Sotomayor thought that standard would be tantamount to absolute immunity, because "anybody could argue plausibility." In the context of qualified immunity for government officials accused of violating constitutional rights, she noted, the standard is what a "reasonable" person would have believed was legal.

Jackson expressed skepticism about Sauer's argument that the possibility of criminal prosecution would have a paralyzing effect on presidential decisions. "Other people who have consequential jobs and who are required to follow the law make those determinations against the backdrop of that same kind of risk," she noted. "There are lots of people who have to make life-and-death kinds of decisions, and yet they still have to follow the law, and if they don't, they could be sent to prison."

Although "you seem to be worried about the president being chilled," Jackson added, "I think that we would have a really significant opposite problem if the president wasn't chilled." If "the potential for criminal liability is taken off the table" and "the most powerful person in the world…could go into office knowing that there would be no potential penalty for committing crimes," she wondered, "wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office?"

[This post has been updated with additional comments from Kavanaugh and Jackson.]

*Correction: The original version of this post misattributed Sotomayor's assassination question to another justice.