Trump v. United States

Issues

Is a former president protected from being criminally charged for actions while in office, especially if the actions involved official duties?

Oral argument:

April 25, 2024

Court below:

United States Court of Appeals for the D.C. Circuit

This case asks the Supreme Court to decide whether a former president can be protected from criminal prosecution by presidential immunity for conduct while in office. Former President Trump, the Petitioner, argues that the Constitution’s Executive Vesting Clause, the Separation of Powers principle, and the Impeachment Judgment Clause grant former presidents absolute immunity from criminal prosecution for their official acts, while historical precedents and common-law immunity doctrines provide foundational support. Trump also contends that the clear-statement rule requires criminal laws to apply to the President only if explicitly stated by Congress. Trump further urges the Court to grant absolute criminal immunity for presidential official duties to maintain executive independence or, if considering qualified immunity, to require a clear legal violation. The United States counters that granting former presidents absolute criminal immunity conflicts with the Separation of Powers principles and the Impeachment Judgment Clause and lacks the support of historical precedent or common-law immunity principles. The United States argues that federal criminal statutes universally apply to the President, and the clear-statement principle does not justify a broad exemption since criminal statutes generally do not seriously threaten presidential powers. The United States also contends that any grant of immunity to a former president should not bar prosecution for charges related to alleged misuse of official powers undermining democratic processes. The decision will influence the application of presidential immunity, election processes, and the presidential right to make political speech.

Questions as Framed for the Court by the Parties

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office

Facts

Former President Donald Trump was indicted by a federal grand jury in Washington, D.C., on four criminal charges in relation to his alleged efforts to overturn the 2020 presidential election results. United States v. Trump at 4. The charges include (1) violation of 18 U.S.C. § 371 in plotting to defraud the United States by attempting to reverse the election results, (2) violation of 18 U.S.C. § 1512(k) in conspiring to impede an official process—specifically, Congress’s certification of the electoral vote, (3) violation of 18 U.S.C. §§ 1512(c)(2) in hindering and attempting to hinder the electoral vote certification, and (4) violation of 18 U.S.C. § 241 in scheming against the voting rights of one or more individuals to cast and count their votes. Id. The indictment is based on Trump’s refusal to concede the election and his numerous attempts, some of which were allegedly criminal. to challenge the results alongside his supporters. Id.

The indictment outlines various methods Trump and his co-conspirators allegedly used to further their goal, such as making false claims of election fraud, organizing fraudulent elector slates, pressuring officials for sham investigations, attempting to influence Vice President Mike Pence to alter the election results, and inciting a violent rally that led to the storming of the U.S. Capitol. Id. at 5. Despite those alleged efforts, Trump’s attempts to overturn the election were unsuccessful, and President-Elect Biden's win was certified by the Congress. Id. at 6. Trump was also impeached for “incitement of insurrection” nine days before Biden’s inauguration. Id. The impeachment alleged that Trump violated his constitutional duty as President to ensure that the laws are faithfully executed and caused violence against the United States government. Id. However, by the time of trial, his presidency ended. The Senate ultimately acquitted Trump. Id. at 7.

Following Trump’s impeachment and the events related to the election, U.S. Attorney General Merrick Garland appointed a Special Counsel, Jack Smith, to investigate the former president’s efforts to interfere with the transition of power after the 2020 election. Id. In response, Trump filed motions to dismiss the indictment based on presidential immunity, constitutional provisions, statutory grounds, and claims of selective and vindictive prosecution. Id. However, the district court denied these motions, stating that former presidents do not have special immunity from federal criminal liability. Id. at 8. Trump then filed an interlocutory appeal challenging the district court’s decision regarding presidential immunity and double jeopardy. Id.

The D.C. Circuit upheld the decision of the district court, holding that Trump no longer had executive immunity protecting him from the four-count indictment when the transfer of power from one president to another occurred under the Constitution Id. at 37–38. Furthermore, the D.C. Circuit held, even if it were considered that an impeachment trial falls under the scope of the Double Jeopardy Clause, the allegations in the indictment were different from the charge for which the defendant was previously impeached. Id. at 47–48.

Trump petitioned for a writ of certiorari, and the United States Supreme Court granted it on February 28, 2024, limited to the issue of the extent of presidential immunity.

Analysis

CONSTITUTIONAL PRINCIPLES AND HISTORICAL PRECEDENTS

Trump argues that the Constitution provides absolute immunity to former presidents from criminal prosecution for their official acts during tenure. Brief for Petitioner, Donald J. Trump at 10. Trump contends that the Executive Vesting Clause and the Separation of Powers support the idea that the judiciary lacks the authority to hold the president criminally accountable for official acts. Id. at 10–11. Trump asserts that the executive power’s immunity from judicial examination is rooted in Marbury v. Madison and reinforced through history, with Nixon v. Fitzgerald upholding a president’s absolute immunity from civil liability for his official acts. Id. at 11–14. Trump argues that since courts lack authority to scrutinize official acts, they are also unable to charge, convict, or imprison a president or conduct a jury trial based on those acts. Id. at 15. Trump further maintains that criminally prosecuting a former president absent impeachment and Senate conviction intrudes upon executive independence, potentially distorting presidential decision-making out of fear of legal consequences. Id. at 15–16.

Moreover, Trump contends that the Constitution’s Impeachment Judgment Clause affirms that presidents, both during and after their term, are immune from criminal prosecution for their official actions unless they have first been impeached and convicted by the Senate, thereby reinforcing the Executive Vesting Clause. Id. at 16. Trump asserts that this clause underscores a constitutional safeguard that requires a political consensus to proceed against presidential misfeasance, implying that presidents are inherently immune from prosecution when they have not been impeached and convicted. Id. at 17. Trump contends that the Impeachment Judgment Clause aligns with the Founding Fathers’ views, particularly Alexander Hamilton’s, which regards impeachment as the constitutional mechanism for addressing presidential misconduct. Id. at 17–19.

Trump claims that prosecuting presidents for actions taken while in office is unprecedented, pointing to the tradition where no former presidents have faced criminal prosecution for their official acts despite numerous allegations. Id. at 22. Trump argues that this enduring practice indicates that implied criminal immunity is a core element of the nation’s political history and constitutional principles. Id. at 24. Furthermore, Trump contends that common-law immunity doctrines also support criminal immunity, as they are designed to preserve the independence of government branches, focusing primarily on shielding them from criminal rather than civil prosecution. Id. at 24–25. Trump argues that these immunities were originally established to protect federal officials from state law prosecutions while they carry out their official duties, and that they are deeply entrenched in American legal tradition. Id. at 25.

The United States counters that neither the Constitution’s text nor history supports granting former presidents absolute criminal immunity regarding their official acts. Brief for Respondent, United States at 9. The United States argues that such an absolute criminal immunity doctrine would undermine the Separation of Powers principles that ensure the government operates under the law, not above it, by creating a new presidential power that bypasses congressional criminal statutes. Id. at 12, 16. The United States contends that, under the Court’s established framework for analyzing presidential power claims, presidents’ authority is weakest when their actions conflict with Congress’s express or implied intentions, allowing presidents to prevail only if they invoke a conclusive and preclusive Article II power that prevents Congress from legislating on the matter. Id. at 10–11. The United States argues that the claim for absolute criminal immunity does not involve any such Article II power, nor does the Constitution explicitly grant the president any form of absolute immunity. Id. at 12. The United States further argues that the rationale in Fitzgerald does not apply to criminal cases, where the public interest in enforcing federal laws outweighs concerns over private damages. Id. at 20.

The United States argues that the Impeachment Judgment Clause explicitly states that a Senate conviction is not a necessary condition for the criminal prosecution of a former president, as it clarifies that a convicted party is still subject to criminal liability even if impeached and convicted. Id. at 32. The United States maintains that impeachment, as a political process aimed at addressing an official’s fitness for office rather than strictly adhering to the standards of criminal conduct or legal evidence, serves a different constitutional role from criminal prosecution, making it inherently unsuitable as a basis for criminal prosecution. Id. at 33–34.

Moreover, the United States asserts that history firmly rejects former presidents’ absolute immunity from criminal prosecution. Id. at 13–14. The United States points out that key Federalist figures stated that presidents could face criminal charges, a view supported by the Watergate proceedings against Nixon. Id. at 14–15. The United States also argues that Trump’s reliance on common-law immunity is inappropriate, pointing out its limited relevance given that the presidency was not part of most of the common law’s history. Id. at 42. The United States contends that civil immunity of judges and prosecutors has never extended to criminal immunity, and such separation ensures that criminal behavior can still be punished and deterred despite civil immunities, thereby justifying the existence of civil immunity. Id.

CLEAR-STATEMENT RULE

Trump contends that criminal laws should exclude the president in their application unless Congress explicitly applies them to the president, based on the clear-statement rule established in Franklin mandating that Congress must explicitly and specifically indicate an intent for a statute to apply to the president. Brief for Petitioner at 37. Trump asserts that the Department of Justice upholds the Court’s practice of avoiding unnecessary constitutional conflicts by asserting that clear congressional language is crucial before assuming legislation applies to the president in ways that might interfere with the president’s constitutional responsibilities. Id. at 37–38. Trump argues that because the criminal statutes at issue do not have explicit congressional statements indicating they apply to the president or his official acts, the Court should not apply the charged statutes to presidents. Id. at 39–40.

On the other hand, the United States counters that federal criminal statutes apply to the president without hindering the president’s constitutional duties. Brief for Respondent at 24. The United States asserts that nearly all federal criminal statutes expressly apply to any person, which naturally includes individuals in government roles, including the president. Id. at 24–25. The United States argues that it is highly unlikely that Congress intended to prosecute presidents only for minor offenses while exempting them from major crimes such as bribery or murder. Id. at 25–26. Moreover, the United States contends that Trump’s interpretation of criminal law contradicts his own admission that a president can be prosecuted after impeachment and conviction. Id. at 26. The United States also claims that the clear-statement principle does not warrant a comprehensive exemption from criminal law for the president because criminal statutes typically do not pose a serious risk to the president’s constitutional powers. Id. at 27.

ASSESSING THE EXTENT OF CRIMINAL IMMUNITY

Trump asserts that if the Court delineates the extent of criminal immunity, it should consider absolute protection for all actions within the president’s official responsibilities to maintain the independence and effectiveness of the executive branch, avoiding complex legal challenges and ensuring the president can perform extensive duties without the threat of litigation or criminal charges. Brief for Petitioner at 41–42. Trump argues that if the Court upholds a general criminal immunity, it should remand the case to the lower courts for further fact-finding on whether the actions in the indictment are official acts within presidential duties. Id. at 44. If the Court considers qualified immunity, Trump contends that such immunity should be broad enough to accommodate the significant responsibilities of high-level executives while requiring a clear and specific violation of established law. Id. at 44–47. Trump further emphasizes that the D.C. Circuit’s approach, which makes presidential immunity contingent on the motive to unlawfully remain in office, appears particularly tailored to him and may set a precarious precedent that could disrupt the balance of power. Id. at 47, 50–51.

In opposition, the United States counters that even if the Court recognizes some immunity for a former president, such holding does not bar prosecution based on the current charges. Brief for Respondent at 44. The United States argues that a president’s alleged misuse of official powers to subvert a presidential election directly undermines the Constitution’s fundamental safeguards of democratic processes and, thus, should not warrant any immunity. Id. at 45. However, if the Court considers some immunity, the United States asserts that a remand should allow the lower court to determine Trump’s criminal liability for the private conduct aimed at personal objectives. Id. at 46. Moreover, the United States maintains that any immunity should not prevent the use of official acts as evidence in trials concerning private conduct. Id. at 48. The United States also claims that while certain evidence of official acts might demonstrate Trump’s awareness of misinformation, it cannot absolve him from liability for his private actions. Id. at 46.

Discussion

INFLUENCE ON PRESIDENTIAL ACTION

Alabama and 17 Other States (“Alabama”), in support of Trump, argue that pursuing Trump’s prosecution jeopardizes presidential immunity that protects presidents from partisan prosecutions. Brief of Amicus Curiae Alabama et al., in Support of Petitioner at 7. As a result, Alabama contends that if courts allow prosecutions that hold presidents personally liable for their actions during their incumbency, presidents will be subject to heightened intrusion on their office. Id. at 8. Alabama criticizes the D.C. Circuit for downplaying the possibility of partisan prosecution. Id. at 14. Alabama asserts that the possibility of meritless prosecutions and the possibility of prosecutions unduly harassing presidents threaten presidents’ independence. Id. at 14–16.

Scholars of Constitutional Law (“Scholars”), in support of the United States, counter that the Supreme Court has never upheld an absolute immunity that shields presidents from criminal prosecutions. Brief of Amicus Curiae Scholars, in Support of Respondent at 11. Scholars maintain that immunity does not protect presidents’ malicious or corrupt acts but protects public interests served by presidents’ exercise of independent judgment. Id. at 12. Scholars emphasize that the Supreme Court distinguished presidents facing civil liability from those facing criminal prosecution in its precedent, as the Court held that exposing presidents to criminal liability would serve the public interest in the fair administration of justice. Id. Scholars argue that criminal procedures, such as prohibiting grand juries and courts from pursuing arbitrary indictments, sufficiently safeguard presidents’ exercise of independent judgment. Id. at 13–14.

IMPACT ON THE ELECTION PROCESS

Matthew D. Wilson, in support of Trump, maintains that Trump acted within his affirmative duty to address allegations of fraud surrounding the presidential election. Brief of Amicus Curiae Matthew D. Wilson, in Support of Petitioner at 11. Wilson asserts that probing into election fraud was Trump’s official act and was within presidential discretion. Id. at 12. Wilson also argues that Trump acted out of good faith in contesting the 2020 presidential election because he sincerely believed in the allegation of election fraud but had insufficient time to prove his case. Id. at 17–18. Wilson emphasizes that given that President Biden has a strong interest in defeating Trump in the upcoming presidential election, pursuing Trump’s pending criminal prosecution is a selective prosecution that may influence the election outcome. Id. at 8.

On the other hand, John Danforth, J. Michale Luttig, Carter Phillips, Peter Keisler, Larry Thompson, Stuart Gerson, et al. (“Danforth”), in support of the United States, maintain that staying Trump’s prosecution will render ineffective federal criminal statutes prohibiting presidents from commanding federal agents to interfere with election results. Brief of Amicus Curiae Danforth et al., in Support of Respondent at 15. Accordingly, Danforth warns that such absolute immunity will encourage presidents to command military and armed federal agents to use force to prevent unfavorable votes and even defy court orders. Id. at 15–16. Danforth maintains that the possibility of Trump using military force in election vote count processes is palpable, given that in 2020, he drafted and attempted to enforce an executive order that mandated the Secretary of Defense to seize voting machines and records. Id. at 16–19.

PRESIDENT’S FIRST AMENDMENT RIGHTS

Christian Family Coalition Florida, Inc. (“CFC”), in support of Trump, contends that the pending indictment infringes on Trump’s right to political speech, as it accuses Trump of challenging the outcome of the 2020 presidential election. Brief of Amicus Curiae CFC, in Support of Petitioner at 5. CFC maintains that whether the 2020 election was fair is a contested factual issue, and the First Amendment protects expressions regarding such political controversies without dictating what is true. Id. at 6. CFC points out that the indictment criminalizes Trump’s speech based on the disputed fact of whether he knowingly made false statements, thereby denying his freedom of expression and chilling speech of those who share similar views with Trump. Id. at 7.

In contrast, Protect Democracy Project, in support of the United States, argues that courts must balance Trump’s rights against the public’s critical right to information that the speedy administration of Trump’s criminal trial will reveal. Brief of Amicus Curiae Protect Democracy Project, in Support of Respondent at 12. Protect Democracy Project points out that the evidence presented during the criminal trial and the trial’s outcome may reveal important information to voters that will help them make informed choices. Id. at 12–13. Protect Democracy Project also emphasizes that Trump’s speech involves attacking the integrity of criminal proceedings by making statements that threaten individuals involved in the judicial process, such as potential witnesses and prosecutors. Id.at 10–11. Protect Democracy Project contends that Trump’s speech undermines the truth-seeking function of the criminal justice system. Id. at 12.