In the midst of all the historic developments of the last six weeks, the Supreme Court’s ruling on presidential immunity in Trump v. United States has not received the attention it deserves. Upon its announcement the decision received decidedly negative reviews from many Democrat elected officials and liberal commentators, who warned that its doctrine would render the president “above the law.” More considered commentary seems to have been delayed, however, by the astonishing events of recent weeks: President Biden’s debate performance, the attempted assassination of former president Trump, and the ultimately successful effort to force Biden out of the presidential race and substitute his vice-president as the new nominee of the Democratic Party.
July 22nd brought a change. Writing in Public Discourse, conservative law professor Michael Stokes Paulsen offered an extended critique of the Court’s ruling and reasoning. Paulsen’s argument is worthy of serious attention because it offers a relatively sophisticated expression of the most negative possible assessment of Trump v. United States. Paulsen pretty much entirely agrees with the knee-jerk critics of the Court who handed down their condemnations before the print was dry on the published opinion, but he brings far more erudition to his task and has been able to spend more time on it.
His intention is well-expressed in his article’s title: “A Lawless Court Gives Us a Lawless Presidency.” Paulsen thinks the Court’s doctrine of presidential immunity from criminal prosecution is both legally groundless and disastrous in its consequences. In truth, however, the ruling is neither as egregious nor as dangerous as he contends.
According to Paulsen, the Court’s ruling in Trump v. United States is a case of “judicial activism, pure and simple.” The justices who signed on to the majority opinion, he claims, succumbed to “the lawless inclination to make up law, and disregard constitutional meaning, to suit the justices’ policy preferences.” The majority opinion thus deserves to be classed with some of the most infamous cases in the Supreme Court hall of shame, “judicial atrocities” such as Dred Scott v. Sanford, Plessy v. Ferguson, Korematsu v. United States, [and] Roe v. Wade.”
Is Trump v. United States really an instance of judicial activism like those rulings? The judgment is complicated by the fact that the cases Paulsen cites are dissimilar among themselves in a noteworthy respect. In some of them (like Dred Scott and Roe) the Court struck down long-established federal or state laws that had always been regarded as constitutional. Others (like Plessy and Korematsu) upheld the laws at issue, with the justices reading the relevant constitutional provisions more narrowly than was reasonable in order to reach the outcome they desired. What these rulings have in common is that the justices used cases arising in the ordinary course of business to make significant changes in the established meaning of the Constitution and in public policy. But Trump v. United States does not fit this mold.
In the first place, the Court here was not acting on the basis of its usual business, because Trump v. United States is a very unusual—and in fact unprecedented—case. Nothing compelled the government to mount this prosecution. Federal prosecutors pass on cases all the time for various prudential reasons. What happened, then, was that the government—more specifically, the Biden administration—brought this case into court despite its unprecedented nature and its obviously inflammatory political overtones. Prior to 2023, no former president in the nation’s history had been indicted for actions taken while he was in office. Biden’s Justice Department chose to do so for the first time ever, taking as its target a man who was running for the presidency again against the administration that was deciding to prosecute him. This, as they say, is “not a good look.” By choosing this course, the Biden administration presented the Supreme Court with a very delicate situation that the justices certainly would not have elected to create for themselves. Finding the existence of presidential immunity in the context of the first-ever prosecution of a former president is hardly akin to finding a right to abortion after abortion laws had been on the books for generations and had been routinely enforced the whole time, or finding that state enforced racial discrimination is permissible under the Constitution when the whole country had just exerted itself to pass a constitutional amendment with a view to prohibiting such discrimination.
Next, the Court’s ruling in Trump v. United States does not strike down any law or drastically reduce the scope of any constitutional provision. The Court is instead doing something much more modest here. It is trying to reconcile the operation of various laws and legal principles that are brought into conflict by the prosecution of a former president for his official acts. The Court is seeking a path that gives due respect both to the laws Congress has enacted and to the legal and constitutional authority of the president. In effect, by declaring presidential immunity from criminal prosecution for official acts, the Court is saying that the president cannot be subjected to legal punishment for acts that he has a legal power to do. This is simple, logical coherence and even sanity. And it may be part of what Chief Justice John Marshall had in mind when he observed in Marbury v. Madison (1803), the most foundational Supreme Court case in our nation’s history, that “in cases in which the executive possesses a constitutional or legal discretion, nothing can be more clear than that” his “acts are only politically examinable”—and that “the province of the court” is “not to inquire how the executive, or executive officers, perform duties in which they have a discretion.”
Further, in performing this particular act of interpretive reconciliation, the Court is emphatically acting on its own turf, so to speak. Unlike in some of the infamous cases of judicial activism noted by Paulsen, the Court in Trump v. United States is not presuming to tell the other branches of the government, or the states, how to do their business or meddling with the scope of their powers. It is instead explaining how it will do its own business. It is the business of the executive branch to decide whether to bring a prosecution, but it is the business of the courts to decide whether that prosecution may proceed. Thus, the Court in this case is clarifying the rules to be observed in the judicial branch in handling a trial that raises the kinds of legal and constitutional questions that a case like this one raises. This is much less remarkable and outrageous than Paulsen suggests.
Following Justice Sotomayor’s dissenting opinion, which he praises, Paulsen admits that a former president who is being prosecuted “must” in the course of his trial “be permitted to raise the defense” that his actions were legally authorized. This is a very telling admission. If the former president is allowed to make this defense, then presumably this defense might prevail—might, that is, convince the jurors to acquit the president. Why does Paulsen not regard that outcome as unacceptably and outrageously placing the president “above the law”? If this defense is permissible, then it must be potentially persuasive as a legal matter. If so, then a trial judge dealing with such a case would be within his or her discretion to instruct the jury that this defense is legally correct and that they should rule accordingly. But if a jury can consider this legal argument, and if a trial judge can instruct the jury to admit this argument, then why cannot the highest court in the system lay it down as a rule that this argument is correct—and call that rule “presidential immunity”?
Paulsen, like Justice Sotomayor, complains that presidential immunity is not directly based on the text of the Constitution. This is true but not dispositive. The Court has long recognized the existence of “executive privilege,” the right of the president to withhold information from the other branches of the government, although there is no “executive privilege clause” in the Constitution. Even the Supreme Court’s power of judicial review is not explicitly mentioned in the Constitution. As Chief Justice Roberts’s opinion explains, however, such important principles may reasonably be understood as implications of the Constitution’s scheme of separation of powers.
Indeed, the need to preserve the separation of powers points beyond the Court’s argument in Trump v. United States to further considerations that strengthen its conclusion. Separation of powers calls not just for presidential immunity but a broader immunity that applies to members of the other branches of government when they are performing their official duties and exercising their official powers. Suppose the Supreme Court issues a decision that some imaginative and enterprising federal prosecutor decides was clearly incorrect. This prosecutor reasons that the justices must have known their decision was wrong, since they were briefed so thoroughly on the case. Should this prosecutor be permitted to charge the justices with “conspiracy to defraud the government of the United States” by issuing a ruling that was knowingly incorrect? Should such a prosecutor be able to bring charges of “obstructing an official proceeding” against a senator who takes part in a filibuster, or a committee chair who cancels a hearing? These examples highlight the legal absurdity of not recognizing an immunity for official acts—of trying to impose legal punishment on acts that were done with legal authority.
Paulsen’s consequentialist assessment of the Court’s ruling is similarly unconvincing. He distorts the picture by exaggerating the dangers of presidential immunity and ignoring the dangers that would follow from not recognizing it. Following Justice Sotomayor, Paulsen contends that the Court’s doctrine means that a president would enjoy immunity from prosecution if he “orders the Navy’s Seal Team 6 to assassinate a political rival” or “takes a bribe in exchange for a pardon.” Paulsen professes astonishment that Chief Justice Roberts’s majority opinion does not bother to “deny” Sotomayor’s “hypothesized nightmare scenarios.”
It may well be, however, that the majority regarded these claims as too outlandish to merit a response, as the Chief Justice suggested by referring to Sotomayor’s “fear mongering on the basis of extreme hypotheticals.” The Court’s opinion takes care to say that the president enjoys no criminal immunity for unofficial acts—that is, for acts that are neither exercises of core constitutional responsibilities nor within the “outer perimeter” of the president’s other manifold duties. This distinction is sufficient to avoid these terrifying hypotheticals. As the Court makes clear, the immunity is based upon the official functions of the presidency, not the identity of the person occupying it. Neither the Constitution nor the laws of the United States authorize the president to use the military power to kill a political rival or any other unoffending citizen. If Seal Team 6 carried out such an order they would merely be conspiring with the person occupying the presidency to commit a murder. No reasonable lawyer or judge would regard this as an official act—any more than it would be an official act for the president to ask the White House Counsel to falsify a legal document or to order the White House chef to poison the First Lady. This distinction similarly preserves the possibility of prosecuting the president for bribery. Issuing a pardon is an official act that cannot be a crime. The same is not true about accepting a payment for doing it.
On the other side of the equation, Paulsen disregards the dangers that follow from the absence of presidential immunity. As Chief Justice Roberts observes, every administration is accused by its critics of insufficiently enforcing some law or another. In the absence of immunity, every president who calls off some investigations or prosecutions because they are not high priorities will be subject to prosecution by his successor for “obstruction of justice.”
This is not a distant but a present possibility, one that may have occurred to the majority’s sense of prudence when they were deciding Trump v. United States. There is a very real possibility that Donald Trump will be returned to the presidency in the coming election. In the absence of presidential immunity, Trump’s Justice Department might prosecute former President Biden for his official acts. Prosecutors could claim that Biden’s student loan forgiveness programs were efforts to “defraud the United States,” or that his permissive border policies amounted to a criminal effort to encourage and assist illegal immigration.
Without presidential immunity, precisely this sort of thing could become common every time the presidency changes parties. And the danger of it would encourage incumbents to wage preemptive lawfare against their opponents to ensure that there is no change in party control. This is the genuine “nightmare scenario” from which Trump v. United States protects the country.
