5 Key Questions for Supreme Court in Trump’s Immunity Appeal

5 Key Questions for Supreme Court in Trump’s Immunity Appeal
(Illustration by The Epoch Times, Getty Images)
March 19, 2024
March 20, 2024

The Supreme Court is set to hear oral arguments on April 25 in President Donald Trump’s appeal arguing that he is immune from criminal prosecution in the case brought by special counsel Jack Smith.

The top court will examine what presidential immunity covers and how it should affect the nation’s separation of powers in future administrations.

Prior cases haven’t definitively established whether presidents enjoy immunity from prosecution over alleged criminal acts. Instead, the court has historically upheld a level of presidential independence and ruled in the 1982 decision of Nixon v. Fitzgerald that a president enjoys absolute immunity from civil liability for acts that fall within the “outer perimeter” of his official duties.

President Trump has argued that immunity should extend to alleged criminal acts. Special counsel Jack Smith and the U.S. Court of Appeals for the District of Columbia Circuit were concerned, however, that widening the scope of immunity that far would undermine the separation of powers and allow presidents to get away with egregious wrongdoing.

The circuit court ultimately rejected President Trump’s immunity request in a unanimous decision.

Embedded in these broader debates is a series of questions about the Constitution, its history, and the relationship between the executive and judicial branches. Below are five key questions that have arisen in legal briefs and that the Supreme Court might consider.

1. Part of Official Duties?

The core of Mr. Smith’s prosecution, on behalf of the Department of Justice, rests on President Trump’s activities leading up to and on Jan. 6, 2021, as well as whether his actions constituted attempts to defraud the United States.

More specifically, Mr. Smith’s indictment alleges that President Trump attempted to fraudulently forestall congressional proceedings on Jan. 6, 2021, through the vice president, his advisors, and false electors.

President Trump has denied wrongdoing but also maintained that all of the indicted actions alleged fell within the scope of his official acts, making them immune from prosecution. In his original motion to dismiss, President Trump described his indicted actions as, among other things, part of his duties to ensure election integrity. His motion states that the nature of an act, not President Trump’s motives, should determine whether it’s covered by immunity.

“The indictment charges President Trump with five types of conduct, all constituting official acts of the President,” his petition to the Supreme Court reads.

The term “official” is important because of what the court held in Nixon v. Fitzgerald, perhaps the most important precedent in this area. That ruling applied to civil immunity. How far the perimeter referenced by Nixon v. Fitzgerald extends has been questioned, as has whether that immunity applies to purportedly criminal actions.

In taking this case, the Supreme Court appears poised to issue a historic precedent. It decided to tackle the issue head-on by asking “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.”

When she assessed President Trump’s immunity claims, District Judge Tanya Chutkan assumed that the allegations in Mr. Smith’s indictment were true and focused instead on whether the law theoretically protects presidents from criminal prosecution. She nonetheless included an analysis of the indictment’s allegations while arguing that, official or not, criminal acts aren’t protected under presidential immunity.

Like Judge Chutkan, the Supreme Court justices might discuss the nature of the alleged actions to weigh the implications of granting immunity to President Trump and his successors.

The substance of President Trump’s activities has been disputed, with some attorneys telling The Epoch Times that at least some of his conduct fell outside of his official duties.
Former President Donald Trump arrives to speak on Super Tuesday at Mar-a-Lago Club in Palm Beach, Fla., on March 5, 2024. (Madalina Vasiliu/The Epoch Times)

“They had nothing to do with his duties as president,” former Assistant U.S. Attorney Kevin O’Brien told The Epoch Times. He said that if the activities were “relevant to the campaign, then he’s in no different position than any other candidate who’s campaigning.”

The appellate hearing in January raised questions about how far presidents could go without facing prosecution. Court of Appeals Judge Florence Pan notably asked President Trump’s attorney D. John Sauer whether a president could avoid criminal prosecution for selling pardons or ordering SEAL Team Six to assassinate a political rival, for example. Mr. Sauer said he could only be prosecuted for the assassination if Congress had first impeached and convicted him for it.

Constitutional attorney Gayle Trotter told The Epoch Times that Judge Pan had raised “extreme” hypotheticals that don’t necessarily have to factor in courts’ decisions. “Those types of extreme examples, I believe, are really for pushing the envelope [and] rhetorical flourish,” she said.

She speculated that Supreme Court justices wouldn’t take those types of examples “into account.”

2. Presidential Decision-Making

President Trump, now the presumptive Republican nominee, could return to the White House in 2025. Even if he doesn’t win in November, his case will likely bear on legal and executive decision-making in future administrations.

The bases for protecting presidential immunity are varied but include concerns about chief executives being able to exercise discretion without undue impediments. That concern will likely play a role in how the justices craft whatever standard they potentially create in resolving President Trump’s case.

Department of Justice memos in 1973 and 2000 both oppose indicting or criminally prosecuting a sitting president as it would “impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” Those memos aren’t binding on the court but could nonetheless help inform the justices’ opinions.

Another vague area of presidential immunity law is whether presidents enjoy the same type of immunity after they leave office. Statements by Judge Chutkan and the appellate judges indicate they don’t.

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” Judge Chutkan wrote in her decision rejecting President Trump’s motion to dismiss.
Outgoing President Donald Trump boards Marine One as he departs the White House on Jan. 20, 2021. (Eric Thayer/Getty Images)

The appeals opinion also said that “President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The consequences, however, of confining immunity to a president’s time in office could be catastrophic, President Trump argued. He warned the Supreme Court on his social media platform, TruthSocial, about the threat of future criminal prosecution and argued that removing immunity would open “Pandora’s box.”

“The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts—especially the most politically controversial decisions,” his petition to the court read.

“The President’s political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution. This threat will hang like a millstone around every future President’s neck, distorting Presidential decisionmaking.”

Both Judge Chutkan and the appellate court argued instead that denying criminal immunity would create positive incentives for future administrations. In denying President Trump’s motion, Judge Chutkan wrote that “the possibility of future criminal liability might encourage the kind of sober reflection that would reinforce rather than defeat important constitutional values. If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect.”

Like Mr. Smith, they also cited “robust procedural safeguards,” as Judge Chutkan put it, in preventing abusive prosecutions.

The appeals court also quoted the district court in stating, “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”

3. How Much Can Courts Review?

Presidential immunity has historically been understood as an integral part of the separation of powers between the three branches of government. For practical and constitutional reasons, judges have resisted the idea that presidents can be tried for certain actions in the courts established under Article 3 of the Constitution.

Much of the legal discussion in President Trump’s case has focused on the Supreme Court’s landmark 1803 decision in Marbury v. Madison, which broadly established judicial review but maintained certain limits on the review of particular presidential acts.

Members of the Supreme Court in 1904: Justice Oliver Wendell Holmes, Justice Rufus W. Peckham, Justice Joseph McKenna, Justice William Rufus Day, Justice Henry Billings Brown, Justice John Marshall Harlan, Chief Justice Melville Weston Fuller, Justice David Josiah Brewer, and Justice Edward Douglass White. (MPI/Getty Images)

Chief Justice John Marshall’s majority opinion criticized the idea that courts had jurisdiction over a president’s discretion. “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion,” he wrote.

President Trump has focused on a portion of the opinion that declares presidential acts “can never be examinable by the courts.” Briefing the Supreme Court, he accused the circuit court of bypassing this precedent and “subjecting the Presidency to the most intrusive possible ‘examin[ation] by the courts,’ and inflicting one of the gravest wounds to the separation of powers in our Nation’s history.”

Mississippi v. Johnson, a Reconstruction-era case, similarly showed the nation’s highest court holding that it “has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” While courts may issue injunctions against the president’s appointees, this case showed the Supreme Court stating it wouldn’t issue one directly against the president himself.

The court also distinguished between ministerial duties, or a straightforward adherence to the law, and discretionary duties, which involve the president exercising his judgment as to how he should carry out responsibilities assigned by Congress. Chief Justice Salmon P. Chase’s majority opinion quoted Chief Justice Marshall in describing meddling in the executive’s “prerogatives” as “an extravagance, so absurd and excessive.”

The discretionary versus ministerial distinction was something the appeals court noted in arguing that President Trump misread Marbury. “Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act,” the per curiam opinion read.
Judge Chutkan notably suggested that President Trump’s immunity argument bore a resemblance to a less democratic form of government. In December 2023, she stated that President Trump’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

4. What Does the Constitution Say?

In short, the Constitution doesn’t say much about presidential immunity. Courts have instead had to indirectly glean understandings of immunity and separation of powers from the text. While there is no explicit constitutional guarantee to presidential immunity, two clauses—known as the vesting clause and the take care clause—feature prominently in the debate over immunity’s scope.

Presidents derive their authority from Article 2 of the Constitution, which “vest[s]” the executive power in the president and provides that he will “take Care that the Laws be faithfully executed.”

In the circuit court, the appellate judges argued that President Trump’s position contravened his duties under Article 2. “It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” their opinion read.

President Trump, however, indicated that in allowing Article 3 review, courts would be violating the vesting clause and separation of powers. “For another branch to arrogate the ‘executive Power’ to itself, or to purport to dictate how the President must exercise that authority, is a core violation of the separation of powers,” his petition to the Supreme Court read.

Former President Donald Trump arrives at a pre-trial hearing at Manhattan Criminal Court in New York City on Feb. 15, 2024. (Spencer Platt/Getty Images).

He’s also cited two other constitutional provisions—both of which the circuit court rejected as reasons to shield him from prosecution.

President Trump’s attorney told the appeals court that the Constitution requires Congress to impeach and convict presidents before they can face criminal prosecution.

That argument is based on the phrasing in the impeachment judgment clause (Article I, Section 3, Clause 7), which reads: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

According to President Trump’s brief, that clause “explicitly presupposes that, absent impeachment and conviction by the U.S. Senate, a President cannot be prosecuted for his official acts.”

Both Mr. Smith and the circuit court have rejected that interpretation of the clause. In a 3–0 opinion, the appeals court argued that “the text says nothing about nonconvicted officials. Former President Trump’s reading rests on a logical fallacy: Stating that ‘if the President is convicted, he can be prosecuted,’ does not necessarily mean that ‘if the President is not convicted, he cannot be prosecuted.’”

President Trump also argued that the prosecution charges him with conduct for which he was already tried and acquitted by the Senate in 2021—meaning that the case violated the principles of double jeopardy. The circuit court rejected this argument as well by stating, among other things, that the clause’s language didn’t apply to President Trump’s situation.

Although President Trump suggested the court address the impeachment judgment and double jeopardy clauses of the Constitution issues explicitly, the justices instead said they would focus on “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.”

“Just by the way [the Supreme Court] framed the question presented, it seems like they’re not going to consider Trump’s arguments about absolute immunity or double jeopardy,” former federal prosecutor Neama Rahmani told The Epoch Times.

5. Impact on Judiciary Credibility

Hanging over the court is the specter of potential reforms and political backlash, as was observed after the 2022 decision in Dobbs, which overturned Roe v. Wade.
President Joe Biden seemed to raise the stakes during his March 7 State of the Union address when he targeted the justices and suggested voters would respond in some way to their decision.
The Supreme Court in Washington on March 7, 2024. (J. Scott Applewhite/AP Photo, File)

Chief Justice John Roberts and Justice Amy Coney Barrett, Mr. Rahmani speculated, “don’t want to drag this court into a kind of partisan political fight.”

He pointed to Justice Barrett’s concurrence in the recent decision of Trump v. Anderson, which struck down the Colorado Supreme Court ruling that President Trump was disqualified from appearing on the state’s ballot.

Justice Barrett caught attention for suggesting that her colleagues should aim to turn the “national temperature down” with such a testy issue.

“The fact that she’s saying that means that she cares about the legitimacy of the court and the perception of the court,” Mr. Rahmani said.

As for the prosecution itself, more than 20 state attorneys general filed an amicus brief in which they expressed concern about the judiciary losing “public trust” because of the pace of Mr. Smith’s prosecution.

The public’s interest, they argued, was in avoiding “a prosecution that even appears timed to damage a political opponent.”

Mr. Smith argued for a quick appeal, stating that the public had an interest in a “speedy and fair verdict.” In a lower court brief, the special counsel argued that “the timing of the indictment in this case was far from suspicious. The prosecution did not materialize out of thin air on August 1, 2023, when the grand jury returned the indictment.”

Former Attorney General Edwin Meese has also filed an amicus brief arguing that Mr. Smith’s prosecution was unlawful because he wasn’t appointed properly under the Constitution.

“Those actions can be taken only by persons properly appointed as federal officers to properly created federal offices,” he wrote in a brief to the court, along with two law professors and Citizens United. “But neither Smith nor the position of Special Counsel under which he purportedly acts meets those criteria.”

It seems unlikely that the Supreme Court will discuss this issue at oral argument. The appellate panel briefly addressed the issue by stating it lacked jurisdiction to review the issue given that it wasn’t presented at the district court level.

The Supreme Court’s decision is expected to be handed down by the end of June