Presidential Immunity from Criminal Prosecution in Trump v. United States

Presidential Immunity from Criminal Prosecution in Trump v. United States

Legal Sidebari

Presidential Immunity from Criminal
Prosecution in Trump v. United States
July 5, 2024
On July 1, the Supreme Court issued a divided 6-3 opinion in Trump v. United States addressing, for the
first time, the existence and scope of a constitutionally based presidential immunity from criminal
indictment and prosecution. The decision, which held that the Constitution provides former President
Donald Trump with “some immunity” from criminal liability for acts taken while in office, appears to
establish a three-tiered framework in which Presidents receive absolute immunity for actions that relate to
“core” or “exclusive” presidential powers, at least presumptive immunity for all other “official acts,” and
no immunity for “unofficial” acts.
The Court reached only two specific determinations on the particular criminal charges brought by Special
Counsel Jack Smith against former President Trump for allegedly attempting to overturn the results of the
2020 election. The former President, the Court concluded, is absolutely immune from prosecution for any
“alleged conduct involving his discussions with Justice Department officials,” actions the Court viewed as
touching on core presidential powers.
The Court also determined that the former President is “at least” presumptively immune from prosecution
for allegedly pressuring the Vice President to decertify the 2020 election, actions the Court viewed as
“official.” Mr. Trump will therefore be immune from prosecution for such conduct unless the trial court
determines that the Special Counsel can rebut the presumed immunity by showing, as described below,
that enforcement of the criminal law in that instance would not intrude on the powers of the presidency.
The fate of the remaining charges—including those relating to the former President’s interactions with
state election officials, and other private parties—was left unresolved. The Court remanded the case to the
trial court with instructions to assess each charge individually and determine whether the underlying and
allegedly unlawful conduct constituted an “official act” for which the former President enjoys at least
presumptive immunity, or an unofficial act, for which the former President enjoys no protections.
This Sidebar summarizes the Trump majority opinion and briefly addresses the decision’s possible effect
on the various criminal cases pending against the former President.
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Background
The criminal indictment obtained by Special Counsel Jack Smith against former President Donald Trump
for allegedly attempting to overturn the results of the 2020 election focused on five categories of actions
or schemes: (1) attempting to influence state officials to “subvert the legitimate election results”;
(2) organizing “fraudulent slates of electors”; (3) using the Department of Justice (DOJ) to “conduct sham
election criminal investigations”; (4) knowingly and fraudulently attempting to influence the Vice
President’s role in certifying electoral votes; and (5) utilizing the events of January 6, 2021, to “levy false
claims of election fraud and convince members of Congress” to delay the certification. President Trump
characterized many of these acts as “official” conduct and asserted that under the separation of powers, he
was fully and absolutely immune from criminal prosecution.
The assertion of immunity was rejected by a federal district court and later a unanimous U.S. Court of
Appeals for the District of Columbia Circuit, both of which held that the former President enjoyed no
immunity from criminal liability. The Supreme Court then granted certiorari on the question of whether “a
former President enjoys presidential immunity from criminal prosecution for conduct alleged to involve
official acts during his tenure in office.”
Prior to Trump, the Supreme Court had never considered whether Presidents (sitting or former) enjoyed
criminal immunity for their official acts.
In Nixon v Fitzgerald, the Court held that Presidents are absolutely immune from civil suits for acts taken
“within the ‘outer perimeter’” of their official responsibilities. This official act immunity, the Court
reasoned, was a “functionally mandated incident of the President's unique office, rooted in the
constitutional tradition of the separation of powers” and justified on the notion that a President must be
free to “deal fearlessly and impartially with the duties of his office” without a concern for liability that
could “render [the President] unduly cautious in the discharge of his official duties.” In Clinton v Jones,
the Supreme Court later clarified that Presidents do not enjoy immunity from civil suits predicated on
unofficial acts, explaining that Fitzgerald’s concern that civil liability could render the President “unduly
cautious in the discharge of his official duties” had no application to potential liability for the manner in
which the President engaged in unofficial acts. These cases, and presidential immunity generally, are
discussed in greater detail in a previous Sidebar.
Although the judiciary had never considered the question, the executive branch has taken the position that
sitting Presidents do possess absolute immunity from criminal prosecution for any act, official or
unofficial, at least while they hold office. That position, the executive branch asserts, is based in the
separation of powers under the reasoning that imprisoning, prosecuting, or even indicting a sitting
President for either official or unofficial acts would “unduly interfere” with the President’s ability to
“perform his constitutionally assigned duties.” The Executive has acknowledged however, that a
President’s immunity from criminal indictment and prosecution is “temporary” and ends when a President
leaves office.
The criminal immunity at issue in Trump was, therefore, a question of first impression for the Court.
The Trump Majority Opinion’s Three-Tiered Framework
Chief Justice John Roberts’s majority opinion in Trump was rooted in principles of presidential
exceptionalism. The President, as the Court has observed, “occupies a unique position in the
constitutional scheme.” He is vested with powers of “unrivaled gravity and breadth” that include
“responsibilities of utmost discretion and sensitivity” and that must, according to the Chief Justice, be
exercised “fearlessly,” independently, and with “bold and unhesitating action.” Under the majority’s
reasoning, the “hesitation” that could “result when a President is making decisions under ‘a pall of
potential prosecution,’” would both constrain the “energy” and “vigor” with which the Framers expected

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the President to act and threaten not only the functioning of the executive branch, but the entire
government. Some immunity, the Court concluded, is therefore necessary “to safeguard the
independence” of the executive branch “and to enable the President to carry out his constitutional duties
without undue caution.” The scope and strength of that immunity, however, depends on the nature of the
presidential action involved.
Exclusive Presidential Powers
According to the majority opinion in Trump, the President enjoys absolute criminal immunity when acting
within the scope of his “exclusive constitutional authority.” Among these “core constitutional functions,”
according to the Court, are the pardon power, the power to remove subordinate executive branch officials,
the power to recognize a foreign nation, and the “investigation and prosecution of crimes.” The Court
concluded that because these select powers are both “conclusive and preclusive,” Congress “may not
criminalize the President’s actions” and the judiciary may not “adjudicate a criminal prosecution that
examines such presidential actions.” When acting within these areas of authority, the President is
completely and absolutely immune from criminal liability for any act. This leaves elections and
impeachment as remaining forms of accountability under the Constitution.
The majority opinion did not extensively address the parameters of these “core” functions. The
conclusion that the “investigation and prosecution of crimes” is a “preclusive and exclusive” presidential
power, for example, could be interpreted to be in tension with Morrison v. Olson, which upheld enactment
of the Independent Counsel statute against a separation of powers challenge, and perhaps cases like
McGrain v. Daugherty, which upheld the validity of a congressional investigation into the DOJ’s failure
to prosecute certain individuals following the Teapot Dome scandal as “plainly” involving a subject “on
which legislation could be had.” Still, the Court in Trump did not indicate that it was calling into question
any of its earlier pronouncements on Congress’s authority on these matters.
Other Official Acts
The President retains “at least a presumptive immunity” for other “official acts” that do not relate to a core
presidential power, according to the Court in Trump. The Trump majority opinion adopted language from
both Fitzgerald and a recent D.C. Circuit decision to define “official acts” as those that occur “within the
outer perimeter of his official responsibility” that are not “manifestly or palpably beyond [the President’s]
authority.” Once an action is deemed to be within the outer perimeter of a President’s official duties, the
President is presumptively immune from criminal liability unless the prosecutor “can show that applying
a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the
Executive Branch.’”
Although the Court described its decision as creating a “limited” immunity, the official act immunity
envisioned in Trump appears to be extensive.
As described by the Court, official acts appear to include not only the President’s exercise of his statutory
and constitutional powers, but also “speaking to and on behalf of the American people” or using the
“‘bully pulpit’ to persuade Americans . . . in ways that the President believes would advance the public
interest.” As a result, the majority opinion observed that “most of a President’s public communications are
likely to fall comfortably within” the umbrella of official acts for which the President enjoys at least
presumptive immunity.
The scope of this described immunity becomes apparent when compared to the much narrower immunity
enjoyed by Members of Congress—an immunity that, unlike the President’s immunity, derives directly
from constitutional text. Members of Congress do not enjoy immunity for all “official acts.” Instead, the
Supreme Court has said that congressional immunity extends only to those “legislative acts” that form “an
integral part of the deliberative and communicative processes by which Members participate in committee

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and House proceedings.” The D.C. Circuit, for example, has plainly stated that “the Speech or Debate
Clause does not immunize every official act performed by a member of Congress.” Moreover, the
Supreme Court has explicitly held that a Member’s communications with the public, even when seeking
“to inform the public and other Members” of matters of national importance, are “not a part of the
legislative function” and are therefore not legislative acts.
Unofficial Acts
If an act that supports a criminal indictment is deemed “unofficial,” then the President enjoys no
immunity under Trump. The justifications that demand criminal immunity for official presidential acts do
not attach to unofficial acts. As described by the Court:
Although Presidential immunity is required for official actions to ensure that the President’s
decisionmaking is not distorted by the threat of future litigation stemming from those actions, that
concern does not support immunity for unofficial conduct.
This is because the immunity established in Trump exists to protect the functioning of the office of the
Presidency, not to insulate the personal actions of the President.
While it appears clear that actions occurring either before or after the President’s tenure of office must be
unofficial acts, the Trump opinion acknowledged that during a President’s tenure of office,
“[d]istinguishing the President’s official actions from his unofficial ones can be difficult.” As described
above, in order to be considered unofficial, a presidential action must be adequately divorced from an
exercise of Presidential authority. The only illustration the Court gave of such an action was to suggest
that speaking as “a candidate for office or party leader” might be considered unofficial conduct.
Moreover, proving that presidential conduct should be categorized as “unofficial” appears to be no easy
task, as the Court made clear that in distinguishing official from unofficial conduct, courts may neither
“inquire into the President’s motives” nor “deem an action unofficial merely because it allegedly violates
a generally applicable law.”
What Immunity Includes
The immunity described in Trump does not only protect a President from criminal prosecution. The
majority opinion also insulates a President from indictment and, according to a majority of five Justices,
prevents a jury from considering “official act” evidence even when pursuing allegations of “unofficial”
criminal wrongdoing. A prosecutor is therefore barred from using evidence of official acts in prosecuting
unofficial acts—meaning that the Trump opinion’s “official act” immunity may also make it more
difficult for prosecutors to seek accountability for otherwise unprotected unofficial acts. For example, the
majority suggested that in a criminal prosecution for bribery in relation to an official act, prosecutors may
“point to the public record to show” that the official act was performed, and introduce “evidence of what
the President demanded, received, accepted, or agreed to accept or receive” in exchange for performing
the official act. However, prosecutors could not “admit testimony or private records of the President or his
advisers probing the official act itself.”
The result of the immunity described in Trump is that, at least for now, a prosecutor is free to pursue a
prosecution of a former President only if the underlying conduct does not relate to a core or exclusive
presidential power, and either (1) the allegedly criminal act is “manifestly” outside the “outer perimeter”
of a President’s official activity; or (2) if it is within that outer perimeter, the prosecutor is able to prove,
without recourse to presidential motive or the use of evidence reflecting official actions, that the
prosecution “would pose no ‘dangers of intrusion on the authority and functions of the Executive
Branch.’” Although the majority definitely concluded that the President is absolutely immune from
criminal prosecution for official acts involving core constitutional functions, the opinion seems to
envision that the operation of the immunity framework it announced—including whether absolute

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immunity might extend to at least some non-core presidential actions—would be clarified only through
subsequent developments. Echoing a statement made in an earlier case about presidential powers, the
majority declared that it would be inappropriate, in the first ever case of its kind before the Court, “to
definitively and comprehensively determine the President’s scope of immunity from criminal
prosecution.”
Effect on the Special Counsel’s 2020 Election Prosecution
and Other Cases
The Trump majority opinion’s precise impact on Special Counsel Smith’s election-related prosecution
will largely depend, in the first instance, on how the trial court applies and interprets the above
framework. As the Supreme Court acknowledged, application of its framework and analysis of whether a
given presidential action qualifies for immunity is “fact specific,” “may prove to be challenging,” and
may take significant time.
The majority opinion in Trump did make clear that the former President is entitled to absolute immunity
and cannot be prosecuted for “the alleged conduct involving his discussions with Justice Department
officials.” This includes threats to remove the Acting Attorney General after that official allegedly refused
to announce what the indictment referred to as “sham” investigations into electoral fraud.
With respect to allegations that the President pressured the Vice President to decertify the 2020 election,
the Court determined that those actions were official and entitled at least to presumptive immunity.
Counting electoral votes, the Court concluded, “is a constitutional and statutory authority of the Vice
President,” and “whenever the President and Vice President discuss their official responsibilities they
engage in official conduct.” Whether the government can rebut that presumption is a question left for the
trial court.
With respect to other allegations described in the indictment, whether the former President enjoys
immunity will depend on whether the trial court categorizes the acts in question as official, and if so,
whether the Special Counsel can prove that applying the criminal law to those acts presents “‘no dangers
of intrusion on the authority and functions of the Executive Branch.’” The Court offered limited guidance
for this endeavor. For example, in addressing the official or unofficial nature of the indictment’s
allegations that the former President had conspired with state officials and private parties to provide
Congress with “fraudulent electoral ballots,” the majority opinion outlined the arguments made by both
sides for the President’s authority (or lack thereof) over federal elections. Ultimately, however, the
opinion concluded that since the “alleged conduct cannot be neatly categorized as falling within a
particular presidential function,” determining which side’s “characterization may be correct” would
require a “close,” “extensive,” and “fact specific” assessment of the allegations by the trial court.
The Trump majority opinion’s impact on other pending criminal prosecutions is similarly difficult to
predict, but at the very least, it appears likely that courts in New York, Georgia, and Florida that are
presiding over criminal proceedings against the former President will need to determine whether and how
the Trump decision applies to their specific cases. The Trump majority opinion’s guidance on whether the
President’s discussions with state officials could be considered official action would appear to have
application to the case in Georgia, which revolves around a similar fact pattern.
The Trump opinion would seem to have less application to the conviction in New York, as that case
appears to primarily involve unofficial acts that either occurred before Mr. Trump’s tenure in office, or
relate to personal financial activities that occurred while he was President. The former President’s
attorneys, however, have argued that evidence of official acts was provided to the jury in that case, which
could implicate the majority opinion’s limitation on the use of official act evidence to assist in the

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prosecution of unofficial conduct. The New York trial judge has delayed the former President’s
sentencing hearing in order to consider the Trump opinion’s impact.
The opinion’s impact on the Special Counsel’s prosecution of the former President in Florida for the
retention of classified documents will likely depend, in the first instance, on how the district judge in that
case categorizes the underlying conduct. While that case appears to largely involve unofficial acts that
occurred after President Trump left office, the former President has argued that the “charges stem directly
from official acts by President Trump while in office,” such as his decision to designate records as
“personal.” If the court were to accept that argument, the former President would be “at least
presumptively immune” from prosecution. Still, even if the conduct at issue in the Florida prosecution is
deemed unofficial, as indicated above the Trump decision would likely still play a role in limiting the
evidence available when a President is prosecuted for an unofficial act.

Author Information

Todd Garvey

Legislative Attorney

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