Presidential Immunity: Discussion Questions on Trump v. United States

JB

As I have done in past years, I am publishing the discussion questions for the annual casebook supplement of Processes of Constitutional Decisionmaking for some of the major cases of the past Supreme Court Term. Here are the discussion questions for Trump v. United States.

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Discussion

1. Poor Richard (Nixon). In August 1974, Richard Nixon resigned from the presidency after the release of a tape recording of a conversation in the Oval Office. In this conversation, Nixon directed his chief of staff, H.R. Haldeman, to order the CIA to tell the FBI not to pursue an investigation of the break-in at the Democratic National Committee headquarters in the Watergate building. This famous “smoking gun” tape recording was deemed conclusive proof that Nixon had engaged in obstruction of justice. It was widely assumed that the “smoking gun” tape recording of Nixon’s conversations with a close subordinate could and would be introduced in evidence both at an impeachment trial and a subsequent prosecution to show Nixon’s corrupt motives. Nixon, believing that impeachment and removal was a foregone conclusion, resigned.

A month later, on September 8^th, 1974, Gerald Ford pardoned Nixon “for all crimes he committed or may have committed or taken part in” while President. Ford’s reasoning was that “Richard Nixon has become liable to possible indictment and trial for offenses against the United States. … It is believed that a trial of Richard Nixon, if it became necessary, could not fairly begin until a year or more has elapsed. In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States.”

Nixon’s decision to resign and Ford’s decision to pardon (which many suspect cost him the 1976 election) suggests that there was a widespread understanding that a former President was not immune from criminal indictment, trial, and punishment, and that the tape recording was admissible as evidence of Nixon’s motives. Indeed, the central holding of the Nixon tapes case, U.S. v. Nixon, was that the special prosecutor had a right to obtain this evidence for use in a criminal prosecution.

As you read the majority opinion in Trump v. United States, would Nixon have been immune from criminal prosecution, although neither he nor anybody else realized it at the time? Moreover, according to the majority opinion, was the famous “smoking gun” tape recording showing Nixon’s motives inadmissible in a criminal prosecution of the former president?

2. The Constitution’s text and original meaning. The majority’s basic holding of absolute immunity; its three-part division between core powers, official actions outside of core powers, and unofficial actions; and its ban on inquiries into presidential motives, have no basis in the constitutional text. Quite the contrary, the Impeachment Clause of Article I, section 3, appears to contemplate that the President will be subject to criminal prosecution: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Nor is there evidence that the founding generation believed that former presidents were subject to immunity for crimes committed during their presidency. The evidence suggests only that some framers believed that presidents could not be indicted while still in office, which is the position of the Justice Department today. Instead, Chief Justice Roberts’ opinion relies primarily on the 1982 5-4 decision in Nixon v. Fitzgerald, 457 U.S. 731 (1982), a Burger Court decision that also was not based on the original meaning of the text and that did not reach the question of criminal immunity.

Two years previously, in Dobbs v. Jackson Women’s Health Organization, Justice Alito excoriated the decision in Roe v. Wade for being “egregiously wrong and deeply damaging.” He explained: “The weaknesses in Roe's reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.” Why do you think that the Justices who joined Dobbs, and especially the originalist Justices, saw matters differently here, and joined the decision in Trump v. United States?

3. Arguments from tradition. Another possible justification for the result in Trump v. United States might be tradition, which can gloss or clarify the constitutional text. However, before the Watergate Scandal, there were no criminal prosecutions of former presidents, and, as noted before, from the founding to at least the time of the Watergate Scandal, the assumption was that a former president was subject to criminal prosecution after he left office. Should the Court have treated the Watergate Scandal and the Nixon pardon as evidencing a tradition dating back to the founding that presidents were not immune from criminal prosecution?

4. Arguments from structure. The strongest arguments for presidential immunity would be structural arguments based on the separation of powers. Chief Justice Roberts argued that presidents would be afraid to make difficult decisions in the public interest if they were subject to later criminal prosecution once they left office. But absolute immunity is not necessary to protect against this possibility. Instead, the Court might have simply argued that federal criminal statutes should be interpreted subject to a public-authority exception, or an advice-of-the-Attorney-General defense. And in order to spare the President the expense and difficulty of a full trial, the Court could have held that Presidents had a right of interlocutory appeal to resolve these questions before trial.

Chief Justice Roberts offers another consideration near the end of his opinion: We live in highly polarized times when people are quick to assume that their political opponents are acting dishonestly and even criminally. If the Court did not create an immunity for former presidents, there might be a cycle of revenge in which each successive administration attempted to put former presidents from the opposition party in jail. “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.” The Supreme Court’s conservative majority might have thought that the multiple prosecutions of former President Trump both in federal and in state courts were precisely such examples of political revenge. Or they might have worried that Trump will take revenge on President Biden, as he has repeatedly suggested he will do.

The argument in response would look something like this: Presidents like Trump are the exception rather than the rule in American constitutional history. No previous president has threatened the democratic system in the way that Trump has, and if he is being prosecuted, it is because he actually is a serious threat to the constitutional system. Moreover, even in the highly polarized environment of the Bush II, Obama, and (first) Trump administrations, there was no attempt to criminally prosecute former presidents for their official actions. Thus, the Supreme Court’s fear of a cycle of vengeance might be based on a sample of one. Moreover, the Court’s grant of immunity may produce a different cycle: a cycle of increasingly corrupt presidents who disregard the law knowing that they will never be held to account. That possibility becomes especially worrisome because the Trump Presidency proved that the impeachment process is a paper tiger. In a highly polarized political environment, it is almost impossible to remove a president as long as his or her party has thirty-four defenders in the Senate.

5. What is an official act? The case of bribery. The doctrinal structure of the Trump opinion is unwieldy and raises a series of puzzling questions. The best way into them is the case of a President who accepts a bribe. See Akhil Reed Amar, Something Has Gone Deeply Wrong at the Supreme Court, The Atlantic, July 2, 2024.

Suppose that the President takes a bribe to pardon a political contributor who has committed some crime. Accepting such a bribe is clearly an impeachable offense. Article II, section 4 lists bribery as one of the grounds for Impeachment. At the Senate trial, the Senators can surely consider any evidence of the President’s corrupt motives. That includes evidence of discussions with the political contributor as well as discussions with the President’s close advisors. (That is why Nixon assumed that he would be convicted at an impeachment trial for obstruction of justice—the tapes showed evidence of his corrupt motives).

Moreover, Article I, section 3 says that upon conviction for bribery in an impeachment trial, “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” That would seem to suggest that a president who accepted bribes could be prosecuted under federal bribery statutes. As Justice Barrett remarks, the federal bribery statute forbids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. § 201(c).

Nevertheless, in Trump, Chief Justice Roberts tells us that the pardon power is one of the core executive functions. Therefore the President’s pardon should be a core official act and should be absolutely immune from prosecution for bribery. Nevertheless, in one of the footnotes to the opinion, Roberts assumes a federal prosecution for bribery would be possible. How is that consistent with the logic of the opinion, given that the federal bribery statute only applies when the President engages in an “official act”?

One theory, offered by Justice Barrett, is that “[t]he Constitution … does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so.” That is, the government may not prosecute a former president for giving a pardon, which is a core executive function, but it may prosecute him or her for accepting money in exchange for a pardon.

The problem with this theory is that it is in some tension with Chief Justice Roberts’ holding about Trump’s attempts to get the Justice Department to stage shame investigations of voter fraud to slow down the certification process: “The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose,” Chief Justice Roberts explains, “do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.” Along the same lines, the allegation that a pardon was given for an improper purpose would divest the President of exclusive authority over pardons. Hence the fact that the President offered a pardon for an improper purpose would seem to be beyond prosecution as well.

Nevertheless, in response to Justice Barrett, Chief Justice Roberts explains that “the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” However, the prosecutor may not “admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety.” The difficulty is how one can prove bribery if one cannot admit evidence of a corrupt motive in performing an official act or “inspect the President’s motivations” for performing the act.

Equally puzzling is that all of this kind of evidence can be considered publicly in an impeachment trial. If a President were impeached and removed for bribery and subsequently prosecuted, the evidence of his motives would already be available to all. Therefore, if Roberts is worried that “inspection [of the President’s motives] would be ‘highly intrusive’ and would ‘seriously cripple’ the President’s exercise of his official duties,” the cow would already seem to be out of the barn door.

6. SEAL Team Six. A hypothetical offered in both the D.C. Circuit and Supreme Court oral argument involved a president ordering an elite military special missions unit, SEAL Team Six, to assassinate a political rival. (For purposes of the hypothetical, suppose that the President asserts that the assassination is necessary for reasons of national security.) Justice Sotomayor argues that under the majority’s reasoning, the President would be immune from criminal prosecution. How does Chief Justice Roberts respond to the argument? During oral argument, Justice Alito argued that military personnel are required by the Uniform Code of Military Justice not to obey unlawful orders. It is obvious that this order is unlawful, Alito argued, and therefore it would be implausible that the military would carry out such an order. Is this a sufficient reply?

7. Laundering a Coup. After Trump v. United States, if a President wants to do something criminal in the future, he is well-advised to launder it through official acts—especially acts at the core of his powers—discuss it only with his close advisers, and let them do all the work. Suppose that you were a president who had recently lost an election, and sought to act consistently with the new rules set out in Trump v. United States. How would you stage a coup to remain in power? What presidential powers would you draw on?

8. Presumptive versus absolute immunity. Trump says that while some presidential acts at the core of executive functions are absolutely immune from criminal prosecution, other official acts are at least presumptively immune. The majority argued that “the current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. … Because we need not decide that question today, we do not decide it.”

According to Roberts, such presumptive immunity can be rebutted by a showing that “applying a criminal prohibition to [an official] … act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” How would one show that criminal prosecution would pose no dangers of intrusion? What if a criminal prosecution would create a small chance of a slight danger of intrusion on executive authority and functions? Is that enough to require immunity? Has Roberts offered a balancing test? If so, what precisely is one supposed to balance?

9. Lincoln, Nixon, and Trump v. United States. Recall the casebook’s discussion of the contrasting views of Abraham Lincoln and Richard Nixon concerning the President’s power to protect national security for the best interests of the nation (pp. 329-30). Nixon argued that "when the President does it, that means that it is not illegal." Lincoln, by contrast, argued that if a President "uses the power justly, the ... people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution." What is the difference between these two formulations? Which of them is most similar to Chief Justice Roberts' reasoning about presidential immunity in Trump v. United States?