Presidential Immunity: Adventures Through the Looking Glass

In Disney’s 1951 film classic Alice in Wonderland, Alice envisions her preferred world: “If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?”

After you read Trump v. United States (No. 23-939, decided July 1, 2024), you might wonder whether the Supreme Court had granted Alice her wish. In Trump, the Court gave presidents wide-ranging immunity from criminal prosecution, an immunity never thought to exist. Trump turns the rule of law from what it is to what it isn’t, from what it wouldn’t be to what it now would be.

The Court has been busy reshaping American life. Some of its decisions have curtailed abortion, cut back gun regulation, and deregulated campaign spending. Others have made it harder for administrative agencies to do their work and easier for state legislators to gerrymander voting districts. And still others have blurred the church/state boundary, diminished efforts to diversify college student bodies, and enabled businesses to deny services to gay couples.

But no decision has been as potent or pernicious as Trump. If someone created a rogues’ gallery of terrible Supreme Court decisions based on the judgment of history—say, Dred Scott, Plessy, Korematsu, The Civil Rights Cases of 1883, Lochner—one could argue, with some heft, that Trump tops the list.

Inviting Abuses of Power

Put simply, the Court gave the president a broad license in a wide zone of activity to commit crimes. Consider this statement from the opinion: Congress “may not criminalize the president’s actions within his exclusive constitutional power. . . .[T]he President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”

Think of the abuses of power those two sentences invite. The Constitution gives the president power to veto legislation (Art. I, § 7), appoint ambassadors and other officers of the United States (Art. II, § 2), and issue pardons (Art. II, § 2). Might a chief executive now be inclined to accept some gold bars as an incentive to veto a law he might otherwise have signed? Or a Mercedes-Benz to appoint some scoundrel to an official position in place of the qualified person who would otherwise have been tapped? Or a nice deposit into an offshore bank account to issue a pardon to a drug lord who had the means to buy the president’s kindness? How many framers might now be turning over in their crypts at the thought of this?

What about the president’s constitutional authority as commander in chief (Art. II, § 2)? If the president orders the military to commit crimes on his behalf, the president apparently has immunity for that too. Why? Because the majority opinion in Trump says that a court may not “adjudicate a criminal prosecution that examines . . . Presidential actions” within “his exclusive constitutional power.”

That’s not the half of it. The Court also addressed the president’s criminal responsibility for official acts outside those areas that the Constitution assigns exclusively to the president. For criminal acts within the outer perimeter of his official but not exclusive responsibilities, the president is now immune unless the government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.” Given that the Trump decision defines intrusion as something that would cause the president to hesitate or “be chilled” from taking bold, fearless, and fair action, it’s hard to think how the government can show no danger of intrusion.

And just where does that outer perimeter lie? The Court explains that everything is within the outer perimeter except for acts “manifestly or palpably beyond the President’s authority.” But even then, there are no clear lines. Acts that allegedly violate “a generally applicable law” are not, for that reason alone, says the Court, outside the perimeter.

Nor may a court, when trying to divine the line between official and unofficial conduct, consider the president’s motives. If a president, for example, directs a cabinet secretary to award a lucrative government contract to an unqualified company because the company has promised a kickback to a presidential friend—classic graft—a court cannot consider the kickback part of the story in assessing whether the directive is beyond the outer perimeter. But without considering the kickback, the rest of the story reveals mere presidential incompetence, not criminality.

Some could argue that those concerns are overblown because criminal law would step in before the crime is committed, by deterring the president’s subordinates from following the directive, deterring the company from promising or paying the kickback, or deterring the friend from taking the kickback. But wait. The president could—with impunity—just as easily pardon the cabinet secretary, the crooked company, and the friend. Everyone in the criminal enterprise would thus share in the immunity the Court has given the president, while taxpayers shoulder the graft and citizens get substandard, maybe even dangerously defective, performance from the contractor.

No Immunity in the Constitution

Of course, not one word or sentence in the Constitution says anything about presidential immunity or even hints at it. Nor is presidential immunity deeply rooted (or, for that matter, even shallowly rooted) in the nation’s history and traditions—the standard some recent Court opinions have used to define the presence, or not, of constitutional protections.

In fact, the idea of immunity from criminal prosecution was never even whispered until the Trump case came along. Has any president ever complained that the specter of criminal prosecution had impeded the president’s decision-making or impaired the exercise of presidential duties? Has any president ever petitioned Congress to be made exempt from the reach of any criminal law? Has any president ever vetoed some crime legislation because it failed to exclude the president from its operation? Has any university or think tank ever produced any research showing how much better our country would be if we would only give the president freedom to commit crimes?

To understand how radical the Trump decision is, consider it in context. Unlike immunity from civil liability, which has found traction in some statutes and judicial decisions for some government actors under some conditions and limits, immunity from criminal prosecution has been a rare exception in American law, recognized in only five contexts. Even then, the immunity is not absolute; it is qualified or contingent.

First, the Vienna Convention on Diplomatic Relations—a United Nations treaty to which the United States and many other countries are parties—immunizes diplomats from those countries from the criminal jurisdiction of the country in which they are posted. This arrangement benefits both countries because the reciprocal immunity ensures that each one’s diplomats can do their work without interference from the other. Still, the diplomat’s home country can waive the immunity for an errant diplomat, and the home country typically expects its diplomats to abide by the other country’s laws. Unlike presidential immunity, diplomatic immunity was created by a well-considered written agreement between countries under the auspices of the United Nations, not by a court.

Second, members of Congress have immunity from criminal prosecution under the Constitution’s Speech and Debate Clause. The framers wrote this into the Constitution for good reason—to allow representatives to do their jobs without fear of legal repercussions. Presumably, if the framers wanted immunity for the president, they would have written that into the Constitution too. Still, the immunity for members of Congress is limited by the scope of the Speech and Debate Clause. If a member sells his or her vote, the member has no protection.

Third, a limited form of immunity from criminal prosecution is generally available to judges. They are typically immune from criminal charges in the performance of judicial tasks undertaken in good faith. But if a judge takes a bribe or engages in some other crime that harms the public, it’s unlikely the judge will enjoy criminal immunity.

Fourth, before Trump, presidents were immune from criminal prosecution but only while in office. This was not by law but by Justice Department policy, established to avoid interfering with the ongoing exercise of official duties.

Fifth, some witnesses have enjoyed immunity under agreements with government prosecutors. The government would immunize witnesses to secure their testimony free from a Fifth Amendment self-incrimination claim, thus enabling the government to prosecute more dangerous criminals with the aid of testimony from the immunized witnesses.

Undermining the Rule of Law

Trump puts immunity on steroids and gives it to the one officeholder in the country who should be the last person to have it. Trump digs away at the roots of the rule of law. It marries the power of the presidency with the worst impulses of any president who finds obedience to law either inconvenient or anathema. It enables Lex Luthor to appropriate the powers of Superman while stomping on Superman’s commitment—shared by our profession—to truth, justice, and the American way.

When reading Trump, every lawyer should ask, “What happened to the American way, grounded in law, nourished by law, protected by a common respect for law?” In 2023, Tom Hanks gave the commencement address at Harvard. In words that should have counseled for a much different outcome in Trump, Hanks said: “The American way is exampled when you respect the law and the rights of all because if you don’t, who will?” Of all people, if the president does not respect the law, who will? If we indulge lawbreaking by the president, what will America have become?

Randomly, the Trump opinion’s penultimate paragraph says: “The president is not above the law.” How can that be when the Court spent dozens of pages to put the president above the law? Saying that the world is flat does not make it flat. This is Alice’s fantasy: “Nothing would be what it is, because everything would be what it isn’t.”

It is hard to overestimate just how vulnerable Trump leaves us. Presidential immunity is now baked into American law and will remain so until some new, future justices vote to abrogate it or until a constitutional amendment undoes it. It took 50 years to undo Plessy. It might take longer to undo Trump, assuming our democracy can survive it.

What Lawyers Can Do

But we lawyers can do something in the meantime to stem the abuse of presidential power that the decision enables. We can call on every candidate for president, before any candidate is elected, to sign a binding waiver of presidential immunity for any acts, past or future, committed by that candidate, coupled with a commitment to memorialize that waiver in an executive order on day one. That should become a litmus test for serving as president. If a candidate won’t commit to that, it tells voters that the candidate cannot be trusted to act lawfully and is thus unworthy of election. A candidate who feels he or she might need immunity is not someone who should occupy the Oval Office.

And we can do something else. We should call on every candidate for Congress, every candidate for state legislative office, and every candidate for governor to pledge their support for the proposed constitutional amendment abrogating presidential immunity. That should be the minimum requirement to earn someone’s vote for any of those offices.

The Supreme Court’s power is awesome and, in this case, chilling. But the ultimate power is still in We the People. While our job, as litigators, is to win cases and help clients, our responsibility, as litigators, is to be the guardians of the rule of law, because if we don’t guard it when the Supreme Court won’t, who will? And if no one guards it, then we too might find ourselves in Wonderland, and everything would be nonsense.