To Be or Not to Be: Presidential Immunity

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“Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” 

The Narrow Issue Before the US Supreme Court

Some say that simply by agreeing to hear the matter (a granting of “certiorari”), the US Supreme Court has effectively granted Donald Trump the immunity he seeks. The only matter that Court is reviewing here is the special counsel’s case against just Trump over his efforts to overturn the 2020 presidential election. By issuing an actual or de facto “stay” (postponement) to lower courts’ pending Trump trials where such immunity is relevant, the Court has given the former President the possibility, if he is elected in November, to vitiate all or most of the criminal indictments against him in one of oh, so many ways. As for federal crimes, he could appoint an attorney general who simply ends those prosecutions. Or attempt to pardon himself.

Claiming that immunity even applies to states (like Georgia) who are attempting to find a massive criminal conspiracy that began before he left office on January 21, 2021; those fundamental acts that might constitute a conspiracy that falls within the definition of “official acts,” a finding that would most certainly find its way to the federal appeals courts. That “stay” noted above would probably apply to state courts where immunity is a defense. Further, those of his constituents who pledged that would not vote for him if he were criminally convicted would have no conviction by the November election.

Even outside of these parameters, there is the prospect of Trump’s reelection triggering a down-ballot election of MAGA legislators and governors. State legislators, even where the governor does not have direct pardoning power (as in Georgia, where a pardoning commission must make a preliminary ruling), could simply defund the prosecution attempting to convict Trump. There are all sort of local statutes and actions in Georgia, which have already passed and some if passed and judicially sustained (unlikely), that could stop the Atlanta case from proceeding: firing the prosecutor or defunding the prosecution. And then there is the darkest prospect of a genuine MAGA rebellion that overthrows the existing government.

Assuming this “January 6th” case is actually tried by a lower court, the Supreme Court’s narrow scope of review – as stated in the opening quote above – is already telling. Trump’s counsel asked for “absolute immunity” for anything Trump did while President, but that’s so absurd that the Court did not include that notion within the scope of their review. Debra Cassens Weiss in the Journal of the American Bar Assn, February 29th digs deeper: “What is the significance of the narrowed question? Some commentators think that it benefits special counsel Jack Smith.

“In a social media thread on X, formerly known as Twitter, Jack Goldsmith, a professor at Harvard Law School, noted that the question focuses on official acts and presidential immunity, rather than absolute immunity.

“Goldsmith sees the language as indicating that the high court might be considering a subset of official acts for which a president might get immunity. Those acts could be core functions under Article II or a subset of presidential powers. He speculates that acts carrying immunity might include pardons, firing of officials and self-defensive military action… ‘But such a ruling wouldn’t come close to giving POTUS a blank check in office since most official acts would not be core Article II functions,’ Goldsmith wrote.

“Steve Vladeck, a professor at the University of Texas School of Law, also attributes significance to the phrasing of the question presented. ‘My own view is that the [question presented] is written rather carefully to narrow exactly what the court is doing, both to cut out of the case entirely some of Trump’s more … extreme … arguments (like double jeopardy) and to also signal that the court is focused on the official acts question (strongly implying that it has no interest in recognizing any broader immunity),’ Vladeck wrote in a Q&A on his One First Substack site.

“Even if Trump wins on the narrowed question, there is room for Smith to go forward with the prosecution based on nonofficial acts, Vladeck wrote… A column in the Washington Post agrees that the ‘official acts’ language means that the Supreme Court could rule for Trump and still leave discretion for Smith to argue that trying to overthrow an election is not an official act.

“In a Lawfare blog post written before the cert grant, Martin S. Lederman, a professor at the Georgetown University Law Center, elaborates on why he thinks that there is no serious argument that Trump was acting in his official capacity when he engaged in the alleged conduct… ‘For starters,’ Lederman wrote, ‘all but one of the counts of the indictment allege that Trump conspired with others to violate the law through fraudulent conduct. And, with one discrete exception, Trump’s alleged agreements to commit such fraud were with persons outside the government’—including, apparently, four lawyers… ‘It’s very hard to see how Trump’s agreements with the five private parties might have been undertaken in his official capacity as president of the United States,’ Lederman wrote.”

So notwithstanding a successful delaying tactic, if Trump is not elected and there is no overthrow of the government, Trump is likely to be tried… and given the tsunami of evidence, even with a very pro-Trump appointee on the federal bench in Florida overseeing the documents case, faces a likely criminal conviction. So, the question remains: can the delay engendered by the Supreme Court’s reviewing his immunity claim at any level effectively save Trump from criminal conviction? Perhaps that is the only question here.

I’m Peter Dekom, and we are currently teetering between a continuing American experiment with democracy or becoming a white Christian nationalist autocracy, and this case just might be determinative.