Trump v. United States: Is the Outrage Warranted?
On July 1, 2024, the Court issued a highly controversial opinion on one of its most anticipated cases in the docket: Trump v. United States. The ruling, which significantly broadened the scope of presidential immunity, has sparked widespread public backlash, with many arguing that it undermines the principle of executive accountability. While these concerns are well-founded, they overlook the decision’s most flagrant flaw: its lack of constitutional grounding.
The case before the Supreme Court centered on the August 2023 indictment, which charged former President Trump with countless federal crimes related to his efforts to overturn the 2020 presidential election results. These indictments marked an unprecedented legal challenge against a former U.S. president, accusing Trump of conspiring to defraud the United States, obstructing an official proceeding, and undermining voting rights.
At the heart of the case was the question of whether a former president can be criminally prosecuted for actions taken while in office and, if so, under what conditions. The long-winded majority opinion authored by Chief Justice John Roberts established a three-tier framework: absolute immunity for acts within the president’s “conclusive and preclusive” constitutional authority, presumptive immunity for other official acts, and no immunity for unofficial conduct. Thus, this ruling effectively shields former presidents from criminal liability for a broad range of actions taken in their official capacity unless prosecutors can overcome a strong presumption against prosecution.
While Roberts made clear in his opinion that “The President is not above the law,” many fear that the ruling creates a dangerous loophole, allowing presidents to engage in misconduct under the guise of official duties. Critics argue that by granting such sweeping immunity, the Court has made it substantially more difficult to prosecute former presidents for actions that might otherwise be considered criminal, sparking concerns that future presidents could abuse their executive authority without fear of legal consequences after leaving office.
Justice Sonia Sotomayor echoes these concerns in her dissent, warning that Presidents may “feel empowered to violate federal criminal law.” Perhaps her most compelling critique, however, is her argument that the decision lacks a solid constitutional foundation, as the majority fails to ground its expansive interpretation of presidential immunity in the text or history and tradition of the Constitution. The Brookings Institute reinforces this point, asserting that “the Constitution nowhere says that a past president is by virtue of having once held that office immune from prosecution for crimes committed while in office.” If anything, the Constitution suggests the opposite. Article II explicitly states that a president may be subject to criminal prosecution after impeachment and removal, implying that former presidents can be held legally accountable for their actions. So, then, what in the Constitution grants former presidents immunity? The majority offers no clear textual or historical support for this broad protection, instead relying on speculative concerns about the separation of powers.
Moreover, as Sotomayor highlights, the “Framers [of the Constitution] clearly knew how to provide for immunity from prosecution,” implying that they knew how to grant immunity when they intended to do so. Article I, for instance, explicitly grants members of Congress protection from arrest during attendance at sessions and immunity from prosecution for speech and debate in the legislative context. Even this immunity is limited in scope and purpose, narrowly tailored to preserve legislative independence, not to shield lawmakers from accountability. The absence of any comparable constitutional protection for the president strongly suggests that no such immunity was intended. If the Framers had wanted to exempt presidents from criminal prosecution for official acts, they would have done so explicitly. Instead, the Court’s ruling fabricates a new, much more expansive form of immunity unmoored from constitutional text, history, or precedent.
As this ruling stretches the limits of executive authority, one crucial question remains: where will the Court draw the line on presidential power? Though many, including Trump and his administration, took the Trump v. United States ruling as an indication that the Court would continue deferring to the executive, recent cases seem to point to otherwise. For instance, in Department of State v. AIDS Vaccine Advocacy Coalition, the Court refused to grant the Trump administration’s emergency request to block $2 billion in foreign-aid payments, signaling the judiciary’s willingness to check executive power in certain contexts. Ultimately, this decision suggests that the Court’s approach to executive authority is not entirely compliant, leaving open questions about how it will rule on future challenges to presidential actions.