The political indictment of President Trump by Special Counsel Jack Smith finally worked its way to the United States Supreme Court. (I outlined the ridiculous Indictment and the nature of the preposterous charges made against President Trump, for those in need of more background.) The case is before the Court on President Trump’s effort to dismiss the indictment on presidential immunity grounds. Essentially, President Trump argues he is criminally charged for his official acts as president and, due to presidential immunity, he cannot be charged for those actions.
The presidential immunity issue will impact at least three of the four criminal cases against President Trump, including the DC Indictment, the Georgia RICO Indictment, and the Florida Documents Indictment. Obviously, much is riding on the Supreme Court’s decision. How might the Court rule and has the Court tipped its hand in any way? The answers may surprise you.
First, take a closer look at how the Supreme Court framed the question for the parties to address on the presidential immunity issue. The Court instructed the parties to answer:
The question posed by the Court carries important implications for the parties. Go back and read the Special Counsel’s original Indictment. The indictment consists of 45 pages of politically charged nonsense, but nowhere will one find any reference to “official” acts by President Trump. Furthermore, usually on a motion to dismiss an indictment, the allegations set forth in the indictment are assumed to be true. This is the standard the DC Circuit applied in its review of the presidential immunity question.
The only party alleging official acts are involved is President Trump. The way SCOTUS phrased the question presented indicates the Court is not going to assume the allegations of the indictment are true for purposes of deciding this important question. This is a critical issue favoring the former president’s contentions and may be something of a “hat tip” to the Court’s thinking. (Former US Attorney and legal expert William Shipley expounds on these issues here for anyone interested in a deeper dive.)
Turning to the merits of presidential immunity, other officers of other branches of government enjoy similar immunity for official acts. The members of the U.S. House of Representatives and of the United States Senate enjoy immunity for their legislative acts. This immunity was firmly rooted in English common law and was enshrined in the United States Constitution through the Speech or Debate Clause. See U.S. v. Johnson (1966). Similarly, judges (including federal judges) enjoy immunity for their official acts. This immunity is also grounded firmly in common law and while it is a form of “absolute immunity” for damage claims, the immunity extends to criminal charges arising out of official acts.
Why would the Supreme Court of the United States recognize legislative immunity for members of the Legislative Branch (Article II officials) and judicial immunity for members of the Judicial Branch (Article III officials), but deny it for the Chief Executive under Article I?
Importantly, the Supreme Court’s decision in Nixon v. Fitzgerald recognized absolute immunity for the president from liability for civil damages arising from any official act taken while in office. Prior to the Nixon decision, courts had not granted such immunity to the president. In Nixon, the Court reasoned that the importance of the president’s duties, his need to deal with matters likely to arouse “intense feelings,” and the potential for lawsuits to hinder the president’s ability to effectively carry out the duties of his office compelled the need for immunity. This same reasoning supports the recognition of presidential immunity to criminal liability as well.
Another factor weighing in favor of presidential immunity is the fact that the president’s official acts “can never be examinable by the courts,” as the Court recognized in Marbury v. Madison. This principle is based on the separation of powers. The separation of powers requires Congress to speak clearly when it intends laws to be applied to the president. The failure of Congress to clearly implicate the presidency is why the president is not subject to the Administrative Procedure Act. Likewise, Congress must “speak clearly” when abrogating immunity doctrines in general. Yet, none of the statutes under which President Trump is charged in the DC Indictment (18 U.S.C. §371, 18 U.S.C. §1512, or 18 U.S.C. §241) even mention the president, let alone give any indication the statutes were intended to apply criminal liability to official acts of the President.
Furthermore, President Trump faced a second farce impeachment shortly after the events of January 6, 2021. On February 13, 2021, the United States Senate acquitted President Trump of the charges in the Second Impeachment. The Impeachment Judgment Clause provides, in part, “. . . the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” President Trump was not convicted on any impeachment articles and, therefore, arguably is not subject to any punishment as a result. Additionally, the conduct charged in the ridiculous second impeachment closely tracks the criminal charges made in the Indictment. President Trump’s acquittal of the impeachment articles by the Senate arguably precludes the current indictment due to double jeopardy.
In light of all of these principles (and more), the Supreme Court should recognize presidential immunity from criminal prosecution for official acts. The question then becomes: does the conduct for which President Trump is charged in the DC Indictment constitute “official acts?” That determination will likely require a record to be developed at an evidentiary hearing with fact-finding. For this reason, SCOTUS is likely to find presidential immunity exists but remand the case to the district court for an evidentiary hearing on the scope of the official acts involved.
Daniel R. Street is an attorney with over 25 years of litigation experience. He is the author of the Fake News Exposed about Trump book series. Follow him on substack for more of his work.