Alec Greven: Senate Hearing Considers the Scope of Presidential Immunity
Alec Greven is a second-year law student at the University of Chicago and a Member of the Society for the Rule of Law.
Earlier this year, the Supreme Court ruled that former presidents enjoy a broad degree of immunity from criminal prosecution related to official acts, but it left open many questions about the precise contours of that immunity.
The Court and Congress
On September 24, 2024, the Senate Judiciary Committee convened a hearing to consider the ramifications of the ruling titled: ‘When the President Does It, that Means It’s Not Illegal’: The Supreme Court’s Unprecedented Immunity Decision. Perhaps predictably at the height of election season, the panel broke sharply across party lines. Even the title of the hearing itself drew criticism from Republicans who portrayed it as factually misleading and inflammatory. Senator John Kennedy challenged the title of the hearing because the Supreme Court ruled that a president does not enjoy immunity for unofficial acts taken in office and so not anything the president does is considered legal.
Other Republicans sought to discredit the hearing by painting it as part of an orchestrated campaign to discredit the Supreme Court. Senator Lindsey Graham said it was part of “a continued narrative of delegitimizing a court you don’t like.” He argued that the rhetoric delegitimizing the Court has helped lead to threats of intimidation and even an assassination attempt against Justice Kavanaugh. Senator Mike Lee, meanwhile, sought to delegitimize the charges against the former President, calling the criminal indictments “lawfare”, with the aim of punishing the former president for his politics.
Chairman Dick Durbin defended the title of the hearing,, which evoked a quote from former President Nixon recalling the Watergate scandal. Durbin argued that many of Nixon’s actions could be classified as official conduct and, thus, arguably enjoy immunity under the Trump framework. Timothy Naftali, historian and former director of the Richard Nixon Presidential Library, highlighted the troubling consequences of this possibility when he testified how Nixon used his presidential powers to launch investigations motivated by antisemitism that seemed to blur the line between official and unofficial presidential conduct. Senator Durbin argued that the court’s immunity ruling makes it “nearly impossible” to hold a runaway president accountable. Durbin deplored violence directed at judges, but insisted it is fair to criticize the Court’s decisions. Senator Peter Welch claimed the decision erodes our system of checks and balances by intruding on Congress’ Article I power.
Senator Sheldon Whitehouse, a prominent critic of the current Court, contended that the decision was a “sorry episode” that exposed textualism and originalism as “doctrines of convenience.” Whitehouse argued that “dark money” built the Court and the Court in this case was granting Trump a delay as a kind of “slow-mo Bush v. Gore.”
Philip Lacovara, the former Deputy Solicitor General and Counsel to the Watergate special prosecutor, criticized the Trump decision on originalist grounds. He argued that the decision is not supported by precedent or historical practice and instead invented a new form of presidential immunity that goes against the intent of the framers of the Constitution.
Lacovara also argued that the text of the Constitution does not support the majority’s reasoning. He contended that while Congress was granted explicit immunity in the Speech and Debate Clause, the president was not afforded immunity in the text. By contrast, the Impeachment Clause establishes that after an impeachment and conviction the president “shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.”
Lacovara recalled that during his time working as Counsel to the Watergate special prosecutor, Nixon and his lawyers never argued the president was immune for crimes committed while in office and instead focused the legal debate as to whether a president can be criminally indicted while in office.
The former Attorney General and U.S. district judge Michael Mukasey testified that the Trump v. United States decision has a “rather unremarkable basis in precedent”, referencing the Supreme Court’s decision in Nixon v. Fitzgerald concerning presidential immunity from civil suits and Justice Robert Jackson’s concurring decision in Youngstown Sheet and Tube Co. v. Sawyer. Mukasey also argued that the decision was modest because it remanded the Trump case back to the lower courts to determine if Trump’s alleged conduct constituted official acts. He also argued that “common sense” shows that extreme hypothetical cases such as a president assassinating a political rival would not be an “official” act entitled to protection.
The Director of the Separation of Powers Institute and law professor Jennifer Mascott also argued that the Court’s decision follows from precedent and preserves a robust role for executive action which would otherwise be chilled by broad exposure to criminal indictment.
Assessing Trump v. United States
Despite the reasoning of the majority and the Senate testimony to the contrary, it is not clear that Trump v. United States can be derived from the precedent in Nixon v. Fitzgerald. The latter case granted absolute immunity for civil suits, which are quite different from criminal prosecutions. The Court in Nixon also took pains to limit the scope of the decision to support the rule of law and claimed their decision “merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.” It is not clear Nixon’s limitation on a “purely private remedy” should extend to the public remedy of a criminal prosecution. And Jackson’s concurrence in Youngstown recognizes that Congress will sometimes have concurrent authority with a president which presidential immunity should not easily trump. Presidential immunity that extends too far may harm the separation of powers by aggrandizing presidential authority at the expense of Congress’ concurrent authority.
Many of the arguments assuming that a president should get no immunity go too far. If a president executes a power granted to him by the Constitution legally he is not subject to criminal prosecution because criminal behavior only involves illegal action. Furthermore, if criminal laws Congress passes that intrude on the official sphere of presidential authority are invalid because they assault the separation of powers between the legislative and executive branches.
Unofficial acts of a president do not receive the same protections because they are not sanctioned by the Constitution. Congress can pass laws that criminalize unofficial presidential acts without violating our system of separation of powers. Our commitment to the rule of law should mean we hold presidents and citizens equally responsible for violations of our laws when a president is no longer in office.
For these reasons, it seems that the majority was correct in holding that official core presidential actions enjoy at least some immunity from criminal prosecution but unofficial actions do not. Difficult decisions fall in between these two poles.
The most concerning aspect of the Court’s decision relates to the holding that “[i]n dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”
It appears the majority worried about the potential for criminal liability chilling energetic presidential action, but the Court has left this unresolved. A president’s actions may still be chilled under the majority’s ruling; because a president is not entitled to immunity for unofficial conduct, a president may always face the specter that a court holds his or her actions as unofficial and subject to criminal liability. Indeed, Trump’s case has been remanded to the lower courts to assess whether his actions were official conduct. It is very possible that a lower court may rule that Trump’s actions were private unofficial conduct to subvert our elections. If this occurs, the legal question over drawing the line between official and unofficial conduct will likely work its way back up to the highest court and in the meantime leave presidential criminal liability uncertain.
Alexander Hamilton offers insight into how the Framers balanced their desire for an energetic executive with necessary accountability. In Federalist 70 Hamilton writes that “[e]nergy in the Executive is a leading character in the definition of good government.” However, in Federalist 69 he argued: “The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince. The one would be amenable to personal punishment and disgrace; the person of the other is sacred and inviolable.” The most natural reading of this language foreclosed absolute presidential immunity from “personal punishment”, such as criminal prosecution..
Excluding evidence of presidential motive can undermine the majority’s distinction between official and unofficial conduct. Motives can be central to distinguishing official and unofficial conduct. Justice Barrett did not join the majority’s exclusion of evidence of motive. She argued that “The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable.” Justice Barrett explains that in certain prosecutions, such as for quid pro quo bribery, a jury must “be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”
Our criminal system has existing protections to address the worries the majority expresses. For instance, if a prosecution rests solely on a “mere allegation of improper purpose” then a judge can dismiss the criminal charges. Also, if evidence of motive is likely to prejudice the jury then the evidence could be limited under Rule 403 that limits unduly prejudicial evidence, as Justice Barrett aptly points out. If one is worried that some evidence may not be prejudicial to a particular President but could chill executive action on the whole, Rule 403 could be refashioned to address this worry. And if a President is acquitted of a criminal charge, they can invoke their Fifth Amendment right under the Double Jeopardy Clause to preclude a different prosecutor charging them for the same crime. There are also jurisdictional protections; it is unlikely a local district attorney would have jurisdiction to prosecute a President for many international acts, such as the handling of the war in Afghanistan.
A reading of the majority’s opinion in Trump v. United States is that it strove to preserve the rule of law by maintaining the appropriate separation of powers that underlies the core of our legal system, while the dissenting justices sounded the alarm about the dangers of lawless presidents. Senate Republicans largely echoed the majority’s view, while Senate Democrats joined with dissenters. Georgetown Law Visiting Professor Mary McCord, however, testified that Justice Barrett’s more narrow interpretation of presidential immunity, allowing prosecutors to examine evidence of motive, offers a middle way and “presents a workable path forward to maintain the separation of powers and ensure that the President is not above the law.”
If a prosecutor is prohibited from presenting evidence of a president’s motive, prosecuting a president for unlawful unofficial conduct becomes exceedingly difficult. The Founding Fathers were deeply concerned with checking the abuse of presidential authority while preserving an energetic executive. A careful and restrained inquiry into improper motive seems to achieve this aim.
The Senate Judiciary Committee hearing represents one moment in an ongoing national debate in the aftermath of Trump. Scholars, courts, and citizens will continue to grapple with these questions for years to come. In the end, the goal must be to maintain a balance of powers that includes a vigorous–but accountable–president.