At Volokh Conspiracy, Ilya Somin: Thoughts on the Trump Immunity Decision - The Supreme Court's flawed decision largely ignores text and original meaning, and fails to resolve crucial issues. From the introduction:
Trump v. United States, Monday's Supreme Court decision on presidential immunity from criminal prosecution, has many flaws. Others, beginning with the dissenting justices, have pointed out most of them already. But I want to highlight two major problems: the majority's neglect of originalism, and the extremely fuzzy nature of the standards it adopts. If the decision has a saving grace, it's that the vagueness might turn out to make it less harmful than it seems at first sight, depending on how lower courts and possible future Supreme Court decisions interpret it.
Perhaps there is a better defense for the majority's approach than what they themselves offer. But the weakness of the Court's reasoning is still significant.
Chief Justice John Roberts' majority opinion holds that the president enjoys absolute immunity from criminal prosecution for the exercise of "core constitutional powers powers," that there is at least some degree of presidential immunity (either absolute or merely presumptive) for other "official acts," and that there is no immunity for purely "private acts." The most striking aspect of the decision is that it offers virtually no originalist or textualist support for any of this.
The liberal living-constitutionalist dissenting justices pay much more attention to originalist considerations here than the conservative originalist majority. As Justice Sonia Sotomayor's dissent point outs, nothing in the text or original meaning of the Constitution gives the president anything like this degree of immunity. In fact, text and original meaning cut the other way:
The Constitution's text contains no provision for immunity from criminal prosecution for former Presidents. Of course, "the silence of the Constitution on this score is not dispositive." United States v. Nixon, 418 U. S. 683, 706,n. 16 (1974)… The omission in the text of the Constitution is worth noting, however, for at least three reasons.
First, the Framers clearly knew how to provide for immunity from prosecution. They did provide a narrow immunity for legislators in the Speech or Debate Clause. See Art. I, §6, cl. 1 ("Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place"). They did not extend the same or similar immunity to Presidents.
Second, "some state constitutions at the time of the Framing specifically provided 'express criminal immunities' to sitting governors." Brief for Scholars of Constitutional Law as Amici Curiae 4…. The Framers chose not to include similar language in the Constitution to immunize the President. If the Framers "had wanted to create some constitutional privilege to shield the President . . . from criminal indictment," they could have done so… They did not.
Third, insofar as the Constitution does speak to this question, it actually contemplates some form of criminal liability for former Presidents. The majority correctly rejects Trump's argument that a former President cannot be prosecuted unless he has been impeached by the House and convicted by the Senate for the same conduct…. The majority ignores, however, that the Impeachment Judgment Clause cuts against its own position. That Clause presumes the availability of criminal process as a backstop by establishing that an official impeached and convicted by the Senate "shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Art. I, §3, cl. 7 (emphasis added). That Clause clearly contemplates that a former President may be subject to criminal prosecution for the same conduct that resulted (or could have resulted) in an impeachment judgment—including conduct such as "Bribery," Art. II, §4, which implicates official acts almost by definition.
Aware of its lack of textual support, the majority points out that this Court has "recognized Presidential immunities and privileges 'rooted in the constitutional tradition of the separation of powers and supported by our history….' " That is true, as far as it goes. Nothing in our history, however, supports the majority's entirely novel immunity from criminal prosecution for official acts.
The historical evidence that exists on Presidential immunity from criminal prosecution cuts decisively against it. For instance, Alexander Hamilton wrote that former Presidents would be "liable to prosecution and punishment in the ordinary course of law." The Federalist No. 69…. For Hamilton, that was an important distinction between "the king of Great Britain," who was "sacred and inviolable," and the "President of the United States," who "would be amenable to personal punishment and disgrace." Id., at 458. In contrast to the king, the President should be subject to "personal responsibility" for his actions, "stand[ing] upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware," whose State Constitutions gave them some immunity…
At the Constitutional Convention, James Madison, who was aware that some state constitutions provided governors immunity, proposed that the Convention "conside[r] what privileges ought to be allowed to the Executive…." There is no record of any such discussion…. Delegate Charles Pinckney later explained that "[t]he Convention which formed the Constitution well knew" that "no subject had been more abused than privilege," and so it "determined to . . . limi[t] privilege to what was necessary, and no more." 3 id., at 385. "No privilege . . . was intended for [the] Executive." Ibid. Other commentators around the time of the Founding observed that federal officials had no immunity from prosecution, drawing no exception for the President…
The majority has no meaningful rebuttal to any of this. Their neglect of text and original meaning might be more defensible if there was strong precedent on the subject. But there is no such precedent, because the courts have never before considered the issue of presidential immunity from criminal prosecution.
The majority mainly relies on the consequentialist policy argument that the president must have extensive immunity so he won't be deterred from carrying out his duties with "bold and unhesitating action." …
Agreed. As indicated in an earlier post, I'm highly skeptical that there is an originalist case for a broad presidential immunity, and the majority does nothing to dispel that skepticism. The opinion is (as Professor Somin goes on to say) mostly a pragmatic extension of the nonoriginalist reasoning in Nixon v. Fitzgerald (which found presidential immunity in civil actions). This extension may or may not be justifiable on policy grounds (Josh Blackman is largely sympathetic to the argument here), but originalists should not be extending nonoriginalist precedent on nonoriginalist grounds.
It's true, as the majority says, that Presidents have exclusive constitutional authority (the majority calls it "conclusive and preclusive authority") in some areas that Congress cannot regulate, including by criminal law. I would not call this immunity; it just means the relevant statute as applied to the President is unconstitutional. (Justice Barrett appears to have this view in her concurrence.) But this is not a large category, measured against the whole of the President's official responsibilities. And the majority may overstate it. For example, the majority says that "the Executive Branch has exclusive authority and absolute discretion to decide which crimes to investigate and prosecute, including with
respect to allegations of election crime," but I'm not sure that's true (and the authorities cited do not establish it as an original matter). In any event, though, the wider category is that of official but not exclusive authority, where the majority says the President has "presumptive immunity." The majority does not develop an originalist case for such an immunity, and I doubt there is one.
Posted at 6:09 AM