Although Trump is more circumspect than Fitzgerald in acknowledging the policymaking nature of its decision, it is nonetheless based on a series of policy intuitions or judgments, some of which are borrowed from Fitzgerald and some of which are not. One in the former category is the need to ensure that the president is not “chilled from taking the ‘bold and unhesitating action’ required of an independent Executive.” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 745). The “hesitation to execute the duties of his office fearlessly and fairly” which “might result” from the specter of potential prosecution “raises ‘unique risks to the effective functioning of government.’” 603 U.S. at __, slip op. at 13 (quoting Fitzgerald, 457 U.S. at 751). Moreover, the Court opined, “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” 603 U.S. at __, slip op. at 13.
The Court did concede that a president “might be exposed to fewer criminal proceedings than the range of civil damage suits that might be brought by various plaintiffs.” Id. But the Court was unimpressed by the government’s argument that the criminal justice system provides adequate safeguards for the concerns it raised. For example, it dismissed the argument that a court could guard against inappropriate use of evidence of the president’s official acts through evidentiary rulings and jury instructions, saying that such “prosaic tools . . . are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President.” 603 U.S. at __, slip op. at 31.
And what are these “peculiar constitutional concerns”? For one thing, the Court worries that “the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance in office.” Id. This concern, though, seems mismatched to the distinction the Court draws among unofficial/core official/noncore official acts. If the Court fears that the jury will be prejudiced against a former president, it is hard to see why it would matter whether the president is charged with committing an official crime or a purely personal one.
The Court also appears to have a general skepticism of the criminal justice system. The “prosaic tools” of that system “may suffice to protect the constitutional rights of individual criminal defendants,” it says, but are insufficient to protect “the institution of the Presidency.” Id. Similarly, it later rejects “the Government’s assurances that prosecutors and grand juries will not permit political or baseless prosecutions from advancing in the first place,” noting that these are just the assurances “available to every criminal defendant.” Id. at 37. The clear import of these statements is that while the safeguards of the criminal justice system may (or may not) be good enough for ordinary private citizens, they fall short when applied to something the Court really cares about.
In addition to its cynicism regarding the justice system, the Court expressed some veiled concern about “broadly worded” criminal statutes being used to indict presidents for normal policy disagreements. It points to Section 371, one of the statutes under which Trump was indicted, which covers “any conspiracy for the purpose of impairing, obscuring or defeating the lawful function of any department of Government.” See 603 U.S. at __, slip op. at 40. This language, the Court suggests, could be used to indict any president who is accused of having under enforced federal law in one or another respect. Id. Left unexplained are (1) what this has to do with the conduct charged by the indictment, which does not involve anything resembling the normal exercise of prosecutorial discretion; (2) why this problem, if there is one, should not be addressed in connection with the interpretation or application of Section 371 itself, rather than by creating an immunity that applies to all criminal laws; and (3) why the problem the Court identifies would not apply equally to all federal officials, not just to the president.
Although the Court shies away from any direct criticism of the prosecution for bringing the case against Trump, Delahunty and Yoo tie the Trump decision directly to the majority’s antipathy toward this particular prosecution. See R. Delahunty and J. Yoo, The Presidential Immunity Decision, 34 Harv. J. L. & Pub. Pol’y 1, 6 (Fall 2024) (“Trump reflects the Court’s rejection of lawfare, starting most immediately with special counsel Jack Smith.”). They explain that the decision was “a vote of no confidence in President Biden and the Justice Department” and assert that Justice Thomas’s concurrence, which challenged the lawfulness and constitutionality of the special counsel’s appointment (an issue that was not before the Court), shows a “disdain for the special counsel” which they believe is shared by the other justices in the majority. This, mind you, is not presented as a criticism of the Court; Delahunty and Yoo make clear that they believe the disdain is warranted based on the special counsel’s “tenuous readings of federal criminal law.”
Even if the Court’s alleged “disdain” for the special counsel is interpreted as a principled objection to his effort to base the first (well, fourth, but who’s counting?) prosecution of a former president on “tenuous readings” of criminal statutes (and leaving aside the question whether the Court’s disdain might have been better focused on the man whose wrongful effort to stay in power prompted the prosecution in the first place), the Delahunty/Yoo “defense” of the Court suggests that it concocted an extraordinarily broad theory of presidential immunity, untethered to the Constitution in any meaningful sense and with consequences that are difficult to predict, simply to ensure that this particular defendant at this particular time should be judged by the voters rather than the courts.
To the extent that the Court was actually trying to accomplish the policy objectives set forth in the opinion, it likely failed. If the Court is concerned that former presidents may be targeted by “political or baseless prosecutions” or that juries will be able to render verdicts potentially tainted by their political or policy viewpoints, its ruling does not foreclose this possibility. One has only to look at the four criminal cases that were brought against Trump to see why. One, the Mar-a-Lago classified documents case, was based solely post-presidential conduct and would not have been affected by the Supreme Court’s ruling. A second, the New York state prosecution, was based largely on pre-presidential conduct and almost certainly could have been brought despite the Court’s ruling, although the ruling may have complicated the presentation of evidence. Even the two prosecutions based on Trump’s attempt to overturn the 2020 election might have ultimately been permitted to move forward, depending on the resolution of the issues which the Court left open regarding whether immunity for noncore official acts was presumptive or absolute and the determination of the line between official and unofficial acts. There can be no doubt, however, that these prosecutions would have faced numerous obstacles and complications, which could have taken years of pretrial proceedings to resolve.
Even if the Court’s ruling made it effectively impossible to prosecute former presidents, moreover, this would not solve the problem the Court identifies. If a sitting president or his administration is determined to punish a former president, there are many other ways to do so. The president can direct his Department of Justice to investigate and prosecute the former president’s family, friends, political supporters and advisers. The Trump decision not only fails to protect against such directives, it facilitates them by declaring that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” 603 U.S. at __, slip op. at 21. As former OLC attorney Paul Colborn noted recently, OLC itself has not previously claimed that this was an exclusive presidential authority. Now that the Court has recognized it as such, the president can presumably direct vindictive prosecutions against his political enemies and there is nothing that either the courts or Congress can do to stop him. Even if he orders the Justice Department to commit a crime, such fabricating evidence to be used in a prosecution, Trump seems to preclude him from being prosecuted.
One might take comfort in the thought that Trump provides immunity only to the president, not to his subordinates. Professor Goldsmith has thus maintained that “the potential criminal liability for subordinates makes it harder for a lawless president to carry out lawless acts.” But this assurance is in considerable tension with both the reasoning and policy objectives of the Trump decision. First, with respect to the president’s exercise of core official powers, the Court concluded not merely that he would be immune from criminal prosecution, but that Congress lacked the power to regulate in this area at all. It is not clear, then, how the president’s subordinates could be prosecuted for obeying the president’s instructions in the exercise of his core powers.
Second, if the Court’s objective is to ensure that the president is able to act in a “bold,” “fearless,” and “unhesitating” manner, how can this be squared with subordinates who must fear potential prosecution if they obey the president’s orders? Treating the president and his subordinates differently in this situation could create more hesitation and timidity than if both were fully subject to the law because the subordinates might feel the need to consult personal counsel before obeying the president’s commands. One can easily imagine, therefore, the Court extending at least qualified immunity to subordinate executive officials.
At least if an administration prosecutes its political enemies the latter can raise defenses, including selective or malicious prosecution, in court. But there are a host of actions that a vindictive administration can take outside the judicial system. These include revoking security clearances, withdrawing Secret Service protection, firing federal employees, yanking government funding or contracts, and even denying access to federal buildings. Trump does nothing to restrain such actions and its maximalist view of executive power may encourage them. Thus, far from avoiding the Court’s dystopian vision of a federal government devoted to attacking its political enemies, Trump has helped to make it a reality.
One policy point that appears in Fitzgerald but not in Trump is the existence of alternative means for restraining presidential wrongdoing. The final paragraphs of Fitzgerald make this point:
A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment. In addition, there are formal and informal checks on Presidential action that do not apply with equal force to other executive officials. The President is subjected to constant scrutiny by the press. Vigilant oversight by Congress also may serve to deter Presidential abuses of office, as well as to make credible the threat of impeachment. Other incentives to avoid misconduct may include a desire to earn reelection, the need to maintain prestige as an element of Presidential influence, and a President’s traditional concern for this historical stature.
The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President “above the law.” For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.
Fitzgerald, 457 U.S. at 757-58 (bold face and italics added for emphasis).
Delahunty and Yoo offer a substantially identical list of “safeguards against abusive, criminally-minded Presidents.” See 34 Harv. J. L. & Pub. Pol’y at 6. But it is fair to ask how effective these safeguards remain or whether they still exist at all. The “informal safeguards” identified by Fitzgerald (italicized in the quote) are historically contingent and do not operate the same way today as they did in 1982. The current president, whose Fulton County mug shot has been adopted as a badge of honor, exemplifies the fact that electoral and reputational incentives are no longer a protection against criminally-minded presidents. Perhaps future presidents will be different, but I wouldn’t count on it.
The ”formal checks” (bolded in quote) are also questionable in their effectiveness. I speak here not of Congress’s unwillingness or inability to conduct effective oversight or impeachment proceedings. Rather my concern is whether the logic of Trump even allows traditional congressional oversight of much presidential wrongdoing. A recent opinion from the Biden administration’s Office of Legal Counsel concluded that a House subpoena requiring the appearance of the secretary of state was invalid because it interfered with a meeting the secretary was scheduled to attend with foreign leaders to discuss the president’s “highest foreign policy priorities.” The opinion relies in part on the general principle (long held by OLC) that a congressional committee cannot investigate or interfere with the president’s exercise of his exclusive constitutional authorities. As Paul Colborn observes, this principle takes on a new significance in light of the Court’s broad language in Trump:
Applying that limitation on the scope of congressional oversight to Justice Department oversight, in light of the exclusive constitutional function immunity recognized in Trump, could significantly curtail congressional oversight of the president’s interactions with the department, as well as his interaction with other agencies. In a moment of congressional reticence to push back against President Trump’s broad and novel assertions of executive power, such a result would be very concerning.
In other words, if the president uses his exclusive constitutional powers (which include the power to direct and supervise the Justice Department, according to Trump) to commit crimes or other wrongful acts, it could be argued (and OLC almost certainly will argue) that not only are criminal investigation and prosecution off the table, but so it congressional oversight. Ad it is not unimaginable that this would be used even to curtail the House’s authority to investigate in furtherance of its impeachment power.
The Trump majority accuses the dissent of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” 603 U.S. at __, slip op. at 37. This line intentionally echoes Chief Justice Burger’s concurrence in Fitzgerald, where he called the dissent’s claim that the ruling placed the president above the law “rhetorically chilling but wholly unjustified.” Fitzgerald, 457 U.S. at 758 n.41 (Burger, C.J., concurring). But Burger never saw today’s “broad and novel assertions of executive power” that Paul Colborn finds “very concerning.” Maybe the Fitzgerald and Trump dissents were onto something after all. Maybe even Chief Justice Roberts is starting to feel some “chilling doom.”