Episode description

In this case, the court considered this issue: Does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?

The case was decided on July 1, 2024.

The Supreme Court held that a former U-S President has absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, at least presumptive immunity from prosecution for all his official acts, and no immunity for unofficial acts. Chief Justice Roberts, writing for the Court majority, concluded that a former President has some immunity from criminal prosecution for official acts during his tenure in office. This immunity stems primarily from constitutional separation of powers principles and precedents recognizing similar immunities in civil contexts.

The President has absolute immunity from prosecution for actions taken pursuant to his exclusive constitutional powers, such as pardoning offenses or removing executive officers. This absolute immunity exists because Congress cannot criminalize, and courts cannot review, the President’s exercise of these core constitutional authorities.

For official actions outside the President’s exclusive constitutional powers, there is at least a presumptive immunity from prosecution. This presumptive immunity is rooted in the need to ensure the President can perform his duties without undue caution or distraction, as established in cases like Nixon v Fitzgerald. The government may attempt to rebut this presumption by demonstrating that prosecution would not unduly intrude on executive functions. However, evidence of immune official acts cannot be used to prove liability for unofficial acts, as this would undermine the purpose of the immunity.

Finally, drawing on Clinton v Jones, the Court affirmed that the President has no immunity for actions taken in an unofficial or personal capacity.

To apply this framework, courts must carefully analyze alleged conduct to determine whether it qualifies as official or unofficial. The Court rejected both Trump’s argument for broader immunity absent impeachment and conviction, and the government’s contention that the President has no immunity from criminal prosecution whatsoever. Instead, it established a nuanced approach requiring case-by-case analysis of presidential conduct to determine the applicable level of immunity, if any.

Justice Clarence Thomas wrote a separate concurrence to highlight that he believes the Special Counsel’s prosecution of Trump may be unconstitutional because there are serious questions about whether the office of the Special Counsel was properly “established by Law” as required by the Constitution’s Appointments Clause.

Justice Amy Coney Barrett wrote a separate opinion concurring in part to argue that rather than framing the issue as “immunity,” the Court should have adopted a two-step analysis for assessing the validity of criminal charges against a President for official acts: first determining if the relevant statute applies to the President's conduct, and then evaluating whether prosecuting the President under that statute would unconstitutionally intrude on executive power.

Justice Sonia Sotomayor dissented because she believes the majority’s decision to grant former Presidents broad immunity from criminal prosecution for official acts is unjustified by constitutional text, history, or precedent, and dangerously places the President above the law.

Justice Ketanji Brown Jackson dissented because she believes the majority’s creation of a new “Presidential accountability model” that sometimes exempts Presidents from criminal law for official acts fundamentally alters the balance of power, undermines the rule of law, and risks incentivizing presidential abuses of power.

The opinion is presented here in its entirety, but with citations omitted. If you appreciate this episode, please subscribe. Thank you.