Balkinization: How Important Is Presidential Immunity?

How Important Is Presidential Immunity?

Andrew Coan

When the Supreme Court decided Trump v. United States last July, critics warned of dire consequences for the U.S. constitutional order. Are those chickens now coming home to roost? Either way, might the decision pose another large and looming threat to the rule of law? These questions obviously require speculation, but I want to suggest four reasons for answering both in the negative. The argument below is exploratory, rather than definitive, and some of its elements are familiar. But I have not seen anyone pull the threads together in quite this way. Points 2 and 4 seem particularly under-appreciated. If the argument is correct, presidential immunity is largely a distraction. We have bigger constitutional problems to worry about.

1. Most basically, it is easy to say that no one is or should be above the law. But it is quite complex to apply this principle to the official conduct of the President, who is plainly granted constitutional power to take actions that ordinary people are not. Congress can certainly regulate this power to some extent, including through criminal prohibition. But to what extent, precisely? Could Barack Obama have been prosecuted for ordering a drone strike on U.S. citizen Anwar al-Awlaki in Yemen? The answers are quite hazy as a matter of text, history, and pre-Trump precedent. This complexity was candidly acknowledged by special counsel Jack Smith’s lawyer Michael Dreeben in his briefs and oral argument. It also forms the foundation of Justice Barrett’s Trump concurrence, which as many commentators have noted, is much more persuasive than the Chief Justice’s majority opinion. In my view, Barrett fails to show that the conduct at issue in Trump exceeds Congress’s power to regulate the presidency. But she makes a very persuasive case that this is a complex question of overlapping constitutional powers, rather than a simple or one-sided question of bedrock principle as the dissents and many critics contend.

2. There are strong reasons to doubt the practical importance of criminal prosecution as a check on the abuse of presidential power. Before Donald Trump, there had never been a single prosecution of this kind in U.S. history. Long-standing policy and the president’s control of the executive branch combine to foreclose any realistic possibility of a sitting president being prosecuted. And many practical and political considerations have always made the prospect of post-presidency prosecutions extremely remote and unlikely to succeed:

the possibility that a president will be reelected or succeeded by a political ally, who quashes the investigation/prosecution or issues a pardon;
the possibility that a hostile successor will be loath to pursue investigations/prosecutions that might be perceived as a political witch hunt;
the blizzard of official authority and other defenses a president might raise, even short of full immunity;
the longstanding presumption against reading general statutory prohibitions as applying to the president;
the possibility that presidential offenses will be successfully concealed;
the elderliness of many presidents at the end of their terms.

For all of these reasons, the specter of post-presidential prosecution was at best a weak deterrent even before Trump. Conversely, the criminal liability of presidential subordinates, who carry virtually all presidential decisions into effect, remains an important check on high-level criminality even after Trump. It has probably always been a more important one historically (even if there are real limits to its effectiveness).

3. It is impossible to remove politics from prosecutions that have (or might have) the effect of imprisoning or disqualifying the leader of a major political party. This is especially true in times of polarization and fraying political norms, which is when such prosecutions are most likely to be most necessary. For presidents who transgress important norms broadly shared across partisan lines, impeachment might work tolerably well as a deterrent and as a mechanism for removing criminal presidents. From 1973 to 2018, impeachment seems to have performed this function quite successfully, despite the demanding threshold for conviction. Indeed, that threshold is probably best understood as a feature, not a bug—ensuring that a president can only be removed from office on the basis of a genuine national consensus. But in the absence of such consensus, removal or disqualification of the nation’s highest and most publicly salient official, whether by impeachment or criminal conviction, is likely to strike their supporters as perilously close to a coup. We can only guess how this scenario might have played out had the Court allowed Trump’s prosecutions to proceed, but there were clearly real risks to that path. The broader point is that no legal strategy is capable of dissolving the dangers inherent in a deeply divided society.

4. Unpersuasive as it is, Trump left most of the hard questions undecided or open to argument—in particular, what falls within the core of the president’s power; how to draw the line between official and unofficial conduct; and what kind of justification might override the presumptive immunity for non-core exercises of official presidential power. The Supreme Court also has no power to bind its future members, if they are sufficiently motivated to depart from Trump's approach down the road (as several other recent decisions underscore). This is especially true in "great cases," decided under the pressure of urgent circumstances. For all of these reasons, the decision's most important consequence, by far, was the immediate one: that Donald Trump’s fate would be decided by the 2024 election. If Kamala Harris won, the special counsel would have had many paths to proceed with his prosecutions. But with Trump victorious, those charges would obviously be dropped, as they have been, with or without presidential immunity. Any decision that delayed the progress of the case would have had the same outcome.

Beyond this, the practical consequences of the decision remain quite uncertain. Donald Trump will be 82 when he completes his second term. Even without the protection of presidential immunity, an investigation and prosecution by his successor would take years and would almost certainly occur only under a Democratic president. The likelihood of this possibility operating as a serious deterrent during his second (now current) term was always quite remote. In fact, the clearest short-term effect of Trump may be to protect Joe Biden against prosecution by the current Trump administration. Future presidents are likely to feel somewhat more secure against post-presidential prosecution owing to the immunity established in Trump. But this security is far from complete and could well be undermined by shifts in the Court’s membership or other circumstances. The practical barriers to post-presidential prosecutions enumerated above are far more important. But these have always existed and would have existed no matter what the Court decided in this case.

What might this analysis overlook? For one thing, the current administration has already repeatedly invoked the reasoning of Trump to support a dramatic expansion of the unitary executive theory. The decision may also have contributed to a gestalt of unchecked presidential prerogative, quite separate from its formal legal significance. Relatedly, the decision may have deprived executive branch lawyers of a useful practical argument for presidents to obey the law, even if the chances of post-presidential prosecution were always remote.

Still, my best guess is that we will come to view the core immunity holding of Trump as a red herring. The problem of presidential lawlessness is acute. But the threat of criminal prosecution has never been an especially important or effective deterrent. We should not exaggerate the significance—or the definitiveness—of its demise. Nearly everything we have seen since January 20 could easily have happened in a world without presidential immunity.

Posted 6:42 PM by Andrew Coan [link]