Supreme Court rules ex-presidents have immunity for official acts (opens in new tab)

“In its ruling, the Supreme Court decided there was no question that Mr. Trump enjoyed immunity from being prosecuted for one of those methods: his efforts to strong-arm the Justice Department into validating his false claims that the election had been marred by widespread fraud. That was because the justices determined that Mr. Trump’s interactions with top officials in the department were clearly part of his official duties as president.” [1]

One of the president’s official duties is to direct the military to take actions that protect the country. Biden can reasonably claim Trump is a threat to democracy, and can officially request him to be killed. Right? If not why not?

1: https://www.nytimes.com/2024/07/01/us/politics/supreme-court...

Under this decision the president can commit a crime or order someone else to commit a crime, and as long as the crime is committed using a power of the office, it can't be charged.

For example, if in an official communication the president orders an officer to solicit a bribe for doing their duty, the president can't be charged.

It's ridiculous, horrible, and destructive to the constitution.

In reality, power can be consolidated to the point where these checks and balances no longer work properly.

Clarence Thomas even wrote openly that the concept of a special counsel is illegal.

The opinion explicitly rejects this line of reasoning.

> Transforming that political process [impeachment] into a necessary step in the enforcement of criminal law finds little support in the text of the Constitution or the structure of our Government

- Trump's lawyers argued in this case that an ex-president can only be charged with a crime if he was impeached and convicted for that same act. But all of the justices rejected this view today. The newly granted immunity is orthogonal to whether or not the president is impeached.

- Though, the president does have to leave office somehow before he can be prosecuted. He can't be prosecuted while still sitting. This wasn't technically decided in this case, but the parties mostly agreed as much beforehand, and the majority opinion has a footnote approvingly citing an Office of Legal Counsel memo to that effect.

- Separately, Trump's lawyers argued that the special counsel that prosecuted him was not properly appointed by an act of Congress. But the Supreme Court did not grant certiorari on that issue and the majority opinion today did not address it. Justice Thomas's solo concurring opinion, however, did address it and agreed with Trump (but a concurring opinion has no legal effect). In any case, this is a different question from whether prosecutions of ex-presidents must go through a special counsel. As far as I know, there is no formal rule that would require it, but it's highly desirable as a way to avoid political bias. That question didn't come up in this case, though.

If so it is bad.

IMO the US president was already too powerful since the cold war, but this is crazy.

Well, the opinion is just as awful as everyone has said. For one thing, it is dishonest. The court spends a lot of time distinguishing the different presidential powers and levels of immunity, as if its holding had limitations. It doesn’t. The practical effect of Trump v. U.S. is that it is all but impossible to prosecute even the most heinous abuses of presidential power.

For another thing, the court really couldn’t manage even a semblance of textual or historical support for its decision. Given the court’s recent emphasis on fidelity to those sources, it really is astonishing! (And I say this as someone who is somewhat sympathetic to textualism in principle.)

I think it’s really worthwhile to read at least the syllabus and Sotomayor’s dissent.

France, for example, has prosecuted former presidents for things like bribery. But I don’t think you can prosecute a former president of France for something he told the Ministry of Justice to do.

I suspect this distinction between official and unofficial acts is also what most people assumed the law was, until Trump forced the Supreme Court to confront it under a particularly unsympathetic set of facts.

In context though, it's quite terrifying given how much the US has fallen into tribalism. Half the population wouldn't convict a certain candidate no matter what they did.

That's why I'm opposed to making changes to the way the Court is selected and empaneled.

The fact that it's inconvenient for one party right now is irrelevant. It'll be inconvenient for the other party soon enough.

> In context of the hyper partisan landscape US politics are today, doesn’t seem likely without a supermajority opposition to be able to bring charges against a president, for official or unofficial acts that are crimes.

Good. If it were easy to bring charges against a President, then Presidents wouldn't be able to do anything they were elected to do.

The failure of that protection at the end of the term is one of the major reasons for the end of the Roman Republic. If you repeatedly make powerful political figures choose between prosecution and violence, it won't take long for one of them to choose violence.

The fact that we've peacefully transitioned between presidents ~45 times is honestly rather amazing.

The president does not need this power and protection. The past 2 years are the first time this 'prosecuting a former president' thing has been an issue, and there are lots of unusual circumstances around it. To give the president such power in response to this seems like a very, very, very bad idea.

Presidents do not need protection from the people, the people need protection from presidents.

And we have it: 2nd Amendment, isn’t it?

The Founders envisioned an extremely weak criminal justice system, especially for "their class of people." Defendants were given extremely strong protections, and convictions were the exception, not the rule.

The Founders were more concerned about facing a duel than a criminal conviction.

So they added other mechanisms for presidential accountability: impeachment, elections, and the weakness of the office.

These other mechanisms have become weaker and weaker, while the criminal justice system has become stronger and stronger.

Impeachment's happen, but not Senate convictions. The political parties have created a duopoloy on power which allow them to run weak candidates. Congress is less and less willing to hold presidents of their own party accountable. Dueling is prohibited not just criminally, but constitionally in most states.

At the same time the criminal justice system is becoming more and more powerful. Convictions are in the high 90%. Juries are very weak and at the mercy of powerful prosecutors.

The Constitution simply didn't envision a situation where the criminal justice system is more likley to hold someone accountable than an election or Congress.

Impeachment, elections, and duels no longer deter bad conduct. Convictions do.

So we have an edge case: a system that can only hold an ex-President accountable via a criminal charge.

Edge cases are weird. They create "sometimes it works and sometimes it doesn't" situations. And that's where we are now.

You want public servants to be able to do their jobs without fear of time-wasting litigation.

But, if you grant blanket immunity, the poilice (or POTUS) are free to do whatever they want.

We're quite clearly tilted way over into "do what they want" territory.

This doesn't mean that the president cannot be tried for some illegal act that was not their official duty. Murdering someone, for example.

However one could argue that this is the logical extension of qualified immunity for police officers which is precedent the court has already set.

To be clear though, I think qualified immunity of any sort shouldn’t be allowed. It’s a subversion of any kind of fair justice.

This does not mean, including from the majority opinion, that anything the President does is immune from challenges. If the President directs a cover-up for his campaign (Nixon) or directs a Governor to find enough ballots for him to win or directs "alternate electors" via fraud (Trump), this is not an official action. Trump's lawyers admitted as much in the oral arguments.

It’s a strict constructionist interpretation, where the judiciary shouldn’t fix problems that the people, congress and States have the power to fix.

In the example of the President (Commander in Chief) directing the military to thwart political enemies, I think a strict constructionist might say, the people freely elected that President, 2/3 of States failed to pass an amendment curtailing the President’s unilateral command of the military and the Congress failed to impeach and convict the President, so the judiciary is hardly to blame when the people, congress and States all could have intervened if there was a concern.

There are obviously counter arguments to this strict constructionist view, which the minority documented. The counter-argument is basically, yes there are those other options, but we have to use a liberal interpretation in this moment instead of a strict interpretation in order to prevent some potential disastrous consequences. And if the people, states and congress don’t like our liberal interpretation, then they can overrule us using the same methods of voting, laws, constitutional amendments, etc. that the strict constructionists advocate.

Out of the US, US presidents have always had effective immunity from any consequences, committing war crimes, disrespecting local laws and eschewing even the UN. Kinda like an expected consequence of everything else.

* Bush fabricated evidence to start a war and never got prosecuted.

* Obama's administration literally sold guns to a Mexican drug cartel for no apparent reason.

* Reagan had iran/contra

* various different "collateral damage" fuckups under every administration during my lifetime where dozens of civilians are killed but nobody cared because they're poor, brown, and not American

* Kennedy authorized the CIA to raise a private army and launch an invasion of a country we weren't at war with.

And many more, this is but a small sample of the crimes presidents have committed.

But nobody ever gets held personally accountable for anything until Doritos Hitler comes along and commits a series of crimes which, while unconscionable, are comparatively minor next to the above listed. This ruling hasn't actually changed anything. It just codified something that has obviously been true for at least 80 years, and it prevented one party from selectively applying the law to a political opponent in a way which it almost never gets applied.

So my defense isn't that the president should be above the law (he shouldn't), but that he obviously already has been above the law for a very long time and pretending otherwise is just lying to yourself and the american people.

Without immunity you’ll get the kind of shit they’ve done with trump, but against sitting presidents. Imagine if Obama had been arrested every time he entered Texas because the locals just feel like prosecuting him to send a message.

Without protection the executive would be at the mercy of the judicial branch. This is clearly an inversion of power.

Perhaps the solution is clean out our legal system wholesale so that it is obvious to all involved whether an action or set of actions could not result in prosecution in the future. Such an action was not within the power of the supreme court.

Under this ruling, the court system is generally not a way to keep him accountable.

So it’s not that there is no accountability or way to “punish”, a rogue president, it’s just a different method of accountability than what applies to you and me.

So basically you have the right scared of former presidents being unjustly targeted in a way that threatens the democratic process, and then you have the left scared that the immunity will itself threaten the democratic process/enable dictators and corruption. Unjust use of prosecution as a political weapon vs just plain corruption being shielded.

It sure seems to me like it would be better if these matters could be handled on a case by case basis rather than in some black and white "former presidents can" vs "former presidents can't" be prosecuted way, but perhaps that is what will end up happening, not a legal expert.

You're in luck! The Supreme Court itself writes down why the decision was made. You can just…read it.

This is ridiculous! It's blatantly political and both parties are guilty of this. The justice system is meant to hold people accountable for breaking the law, not as an additional political mechanism for checks and balances. I haven't looked into the case and don't know the legal precedent SCOTUS used for this decision, but from a consequentialist standpoint this seems to me an obviously good outcome.

Can we prosecute Obama for ordering drone strikes on U.S. citizens? Can we prosecute Bush for the Iraq war? Can we prosecute Biden in a few months for deaths caused by his border policies?

Also, this is just how immunity works! Judges have immunity for their judicial conduct in office, and don’t lose it when they retire. When the GOP wins a trifecta next year, can they prosecute retired liberal justices for homicide for abortion rulings?

A president being incompetent or immoral in his line of duty is an issue for voters or congress to decide on. But a White House bogged down in lawsuits or petty criminal charges would cease to function.

https://www.supremecourt.gov/opinions/23pdf/23-939_e2pg.pdf

> One example not relevant to this case but which came up in arguments was the hypothetical payment of a bribe in return for an ambassadorial appointment.

Under Monday’s decision, a former president could be prosecuted for accepting a bribe, but prosecutors could not mention the official act, the appointment, in their case.

So, imagine:

Prosecution: You took a bribe!

Defense: Bribe? No! It was just a gift.

Prosecution: It preceded the intended action, so it WAS a bribe.

Defense: What action?

Prosecution: Oops.

Nixon was never prosecuted because he was pardoned so the official acts stuff is moot. Crimes committed in war/putting down rebellion/etc are bad but more clearly within the scope of official acts than anything Trump is accused of.

Reagan, to the extent that he did/didn't coordinate with Iran to delay the hostage release, would be the closest parallel since it would have been a crime (Hatch act violation) in the direct pursuit of winning an election. But that was before he was president so this also wouldn't be relevant for today's ruling.

We don't prosecute ex presidents often because most of them either don't commit crimes or the ones they do are arguably part of the job. Trying to prevent the legitimate transfer of power is not close to a part of the job. The opposite in fact. Nixon only gets pardoned because he agrees to fuck off and spare the country the shitshow we currently have.

> The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. [... citations ...] Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the 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.

(I wanted to quote Barrett since she's a Trump-appointed justice.)

I think you are looking at this backwards. There was an unwritten agreement between the people and the Executive, namely, that we understand there are things that you might have done or had to do while President that to the ordinary person would be a crime and we will let you ride off into the sunset unbothered after you leave office, but in exchange for this, we expect there to be a peaceful transfer of power. We have entrusted this experiment in democracy to you, and when its time to go, you make sure it is passed on. Even Nixon did this.

There have always been contentious elections - some have ended up in the courts - but at the end of the day, a process was observed and followed. Donald Trump was the first President to not respect this unwritten agreement between the Office and the people. And now conservatives are doing what they always do: They are saying that we the people are not protected when the Executive doesn't hold up their end of the bargain, but that we are bound to uphold ours.

But, yes, an impeachment or senate trial is likely unthinkable without a super majority. Driving conformity/uniformity is the goal of party politics.

It's supposed to be hard to do. Impeachment is intended to be reserved for egregious violations or actions that most of congress (and by proxy, the citizenry) agree on.

So Nixon tapes discussing his campaign probably would be admissible.

The claimed absolute immunity only extends to "official actions" made in discharging the responsibilities of the office, although a presumptive immunity (which is an immunity that a court could overrule based on lawyers' arguments that it doesn't apply) extends all the way towards the "outer perimeter" of the president's official responsibility. If things aren't official actions even in this "outer perimeter" sense, then the President doesn't enjoy any immunity according to Roberts' opinion.

And keep in mind that "official duties" in theory involves enforcing the laws that Congress has passed, so it's not carte blanche (except that Congress has given the White House a lot of carte blanche power to enforce various laws however it sees fit).

As for the "why", Roberts' opinion lays out these major statements:

1. The core matter of "why" should be, to try to make a precise application of the separation of powers doctrine. The powers need to be separated along some concrete lines, what are they. The claim Roberts makes is (in my words), if Congress were to pass a law that says "The Justice Department must be independent of the Oval Office," that would be arrogating some of the executive power which the Congress has exclusively vested into the Presidency, and would immediately fall afoul of the separation of powers doctrine. Similarly if they said "The President must under no circumstances send the lawyers of the Justice Department out to maliciously prosecute his political rivals for all their minor offenses," you know, that's a statement about how the laws are enacted and that's a power that simply wasn't bestowed upon Congress. And if all such laws would be void anyway, then the Court fundamentally can't find the President to be violating any law of that sort. So the determination is fundamentally that this immunity comes from separation-of-powers.

In the Constitution itself, Roberts points to the fact that the Constitution doesn't vest the executive power in "the administration" or some such, the power is vested directly in "a President" and they use that power to appoint their administration. The administration is their oyster.

2. Those concerns can be mitigated, renegotiated, reinterpreted by trying to appeal to what the original purpose of the power-grant was. So Roberts states flat-out what the Court's opinion was on the original purpose of the power-grant, and it's twofold.

2a. The power understood by the Framers, consists of marshaling the President's considerable resources towards enacting the laws passed by Congress. Roberts' decision goes to great effort to say that no man is above the law, that not all actions taken by a President-in-office are official actions, and that even among the official actions only the ones that directly pertain to enforcing laws and Constitution are part of "absolute immunity."

2b. But also, the framers of the Constitution intentionally built the executive branch to be "swift and decisive" after the Articles of Confederation produced an anemic executive branch that was unable to rally the States together to fight off the British. Being "swift and decisive" in this sense is almost just as hampered by after-the-fact prosecution as by in-office prosecution, because you are still having to evaluate "hey, if I try to enforce the laws that Congress passed by doing X-Y-Z, is this going to piss off some prosecutor enough to make my life hell after I leave office?" vs the same statement "...while I am in office?".

Of course, some amount of hesitation is warranted -- the President doesn't want to be impeached and potentially removed; and he would like to win another election. But Roberts is saying that the federal courts system isn't one of these sources of hesitation for those "I have these resources, and those laws to uphold, I am going to enforce these laws with such-and-so resources and those laws with those resources" concerns. Not during or after the Presidency, because it's not about "oh I have to go to court today", but rather about "Man, I have to go to Legal and get their opinion on this."

3. It lays out a foundational principle that the separation of unofficial and official actions should be done without any reference to what the President was thinking at the time, and without any reference to any generally-applicable laws. So if the President is doing something that a President could do as part of normal enforcement of the passed laws under normal circumstances, but is doing it for secret nefarious reasons and in a way that if a midrate businessman did so, they'd be guilty of fraud: Roberts says "that doesn't matter, it is still an official action regardless of his reasons and therefore swiftness applies and he's immune." And he outright states that this is for a "slippery slope" reason; the swiftness desired by reason (1) is not actually created if you then generate a legal loophole which says "well let's still have the courts consider these other parameters and maybe we can get the immunity disqualified."

The decision thus applies the absolute immunity to Trump's attempts to get the Justice Department to prosecute the (highly dubious) election fraud that he claimed had happened, and it applies the same immunity to Trump's threats to fire the Attorney General if he didn't do as Trump wanted. It says "yeah, it doesn't matter if you convincingly argue that Trump knew the election fraud was bullshit, and it doesn't matter if firing the Attorney General would have qualified at any other workplace as illegal retaliation."

4. Roberts makes it clear that as part of (2a) above he is not overturning past precedents which have placed presidents subject to the courts' subpoena power, even though that in theory also endangers some sort of "swiftness" of the job. So the judicial branch is kind of in this strange middle-ground position of "We can still demand our questions be answered, but we can't throw you in jail for doing what appears to be your job."

Kind of a strange ruling, but it's not total executive anarchy like you might expect. If Biden were to, say, tell his military "Go arrest the Justices, put them in overnight lockup, see how they like the world they created" there would probably be a strong case that, due to due process guarantees, Biden never had the power to order that and it qualifies as an "unofficial" act for which he enjoys no immunity.

> The opposite holding, where they are liable for everything, would be untenable.

Literally no one was arguing for this and there are much more reasonable interpretations of presidential immunity you could compare this one to.

This is a disaster for rule of law.

Only where their actions were already criminal under the law. This is the problem. No-one should be above the law.

Unintentionally? American citizens were the intended targets of some of his drone strikes. They weren't in warzones either, it was effectively murder.

I feel like you'd have a different opinion if it were you getting unintentionally killed!

How would attempting to overturn the results of a free and fair election be considered an "official duty"? If it is, then the Presidency became a dictatorship, leaving impeachment by Congress -- an extremely difficult bar -- the only recourse.

I'm fairly sure there's a full and complete list of these is explicitly in the Constitution.

The disallowing of considering even corrupt intent seems to be the real worry here. There's no distinction between using your power to promote general welfare and using it to line your own pockets or subvert democracy.

https://en.wikipedia.org/wiki/Anwar_al-Awlaki

https://en.wikipedia.org/wiki/Killing_of_Abdulrahman_al-Awla...

To my mind, that is exactly the sort of thing I'd like to be hamstrung by a fear of prosecution.

(Trump ordered drone a drone strike that also killed Abdulrahman's eight-year-old American sister.)

except Obama ordered plenty of drone strikes including on American citizens, so actual data suggests he was not "hamstrung" at all.

How about the one which intentionally killed an American child (16)?

Part of me wouldn't mind seeing that, but, I would have to agree that was an official act, regardless of how despicable it was.

But what's an "official act"? I would hope that courts consider that definition very narrowly. Also disallowing juries to see discussion of official acts as evidence for related wrongdoing is disastrous.

Ultimately, though, it won't matter. Trump has effectively managed to delay this particular trial, and much of the remainder of its pre-trial process, until after the election and after the inauguration. I assume if he wins and takes office, he can instruct the DoJ to dismiss the case against him.

The Georgia case can still proceed, regardless of the outcome of the election, but Willis completely screwed that one up with her idiotic romantic decisions.

  > Could Obama be prosecuted for ordering drone strikes that unintentionally killed two Americans?

If you're not referring to this, Obama's already done this without getting charged.

Being POTUS is an unenviable job.

https://en.wikipedia.org/wiki/Anwar_al-Awlaki

Edit: Since people are assuming my views on this topic, I'll say that they're seriously conflicted and I'm not trying to imply any particular viewpoint, only the facts.

Remember that the President can still be impeached for "high crimes and misdemeanors".

Am I wrong there?

Fortunately, the past rulings of this court have made the jurisprudence abundantly clear:

If Biden orders Trump to be assassinated, that's unofficial, and he can be prosecuted.

If Trump orders Biden to be assassinated, that's official, and he has complete immunity.

Easy, right?

I've got a pretty good guess, and it will be based on the political party of the defendant.

This is nonsense. The President can just assassinate all of their political rivals in Congress that would hold them to account. Before this ruling there was an assumption that any such actions would be prosecuted after the President was no longer in office (assuming they didn't have enough power to interfere with a free election). Now that can't realistically happen.

There's a reason why folks are saying this ruling, "paves the way to a dictatorship"!

Most likely not. Watergate was a result of an election campaign, not official acts as President.

https://teachingamericanhistory.org/document/transcript-of-d...

That's exactly what Silvio Berlusconi did in Italy.

I honestly, need to unplug from news, and just focus on nature.

https://www.latimes.com/world-nation/story/2024-06-26/suprem...

On the whole the principle of this ruling is sound:

The President shouldn't be in a position where he has to wonder before each choice if he'll later be prosecuted for it or not. The boundaries of official acts should be spelled out clearly in the law, and when acting within those boundaries the President should be confident that he's authorized to make the tough calls.

The ambiguities that this ruling brings to light were already there, this ruling only exposes them. President Obama could theoretically have been personally prosecuted for killing al-Awlaki and now he can't.

Now it's time for us to explicitly identify in the laws what the President can and cannot do. That's a change that's long overdue.

[0] https://en.wikipedia.org/wiki/Anwar_al-Awlaki

We’re probably a decade away from a coup.

https://www.documentcloud.org/documents/24785411-trump-v-uni...

https://www.scotusblog.com/2024/07/justices-rule-trump-has-s...

Da da da da-da, da-da-da-da daayyy-ya-da, da-da da da da-dayyy-ya da

  Judgment in Cases of Impeachment shall not extend further than to removal from Office,

  [...]

  The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Convicted just as other citizens with Limited Privileges and Immunities.

OPINION: In the US Constitution, removal upon "Impeachment for" is distinct from removal for "Conviction of". Thereby there is removal from office for both: a) Impeachment by the Judgement of the House and Senate, and also by b) Conviction by implied existing criminal procedure for non-immune acts including "Treason, Bribery, or other high Crimes and Misdemeanors."

Conviction is not wrought through Impeachment by the House & Senate, who can only remove from office.

Neither is Arrest Removal from Office, nor is Removal from Office Arrest.

Thereby, a President (like all other citizens) can be Convicted and then Impeached.

That the Executive's own DOJ doesn't prosecute a sitting President is simply a courtesy.

Edit: My example was going to be if the President addressed the nation and declared himself to be king… but Biden literally just did that, reluctantly accepting that he was beyond the review of the courts and accountable to no one but himself.

Any and all communications outside of the executive order would not be admissible as evidence even if the DOJ did want to prosecute!

I think we have fundamentally different views of the Executive's role. We have 3 branches of government, and the President is the guy who enforces the law. The Justice department is not a 4th branch of government.

> Please don't post comments saying that HN is turning into Reddit. It's a semi-noob illusion, as old as the hills.

https://news.ycombinator.com/newsguidelines.html

The court is granting him blanket immunity on one count, and the rest the prosecutors need to clarify that the crimes were outside of the duty of his office.

> Donald Trump’s legal team will likely use Monday’s SCOTUS opinion as they challenge the New York hush money criminal verdict itself on appeal, a source familiar with their thinking tells CNN.

> Trump’s team thinks the SCOTUS option could be used to challenge portions of Hope Hicks testimony as well as some of the tweets entered in as evidence, according to the source familiar.

> CNN earlier reported the Trump team sees the opinion as “a major victory” because in addition to using it to try to get charges tossed, they can also use this opinion to get evidence related to official acts tossed in all cases — not just federal — which can hurt prosecutors’ ability to prove what charges are left.

The entirety of lawyerdom? I think I'll trust their take on it rather than bland, disingenuous dismissals.

The notion that former heads of state have some sort of immunity for official acts is also common in developed countries: https://oxcon.ouplaw.com/display/10.1093/law-mpeccol/law-mpe...

“Functional immunity applies to both sitting and former heads of state; however, this immunity is available to such individuals solely with respect to acts performed in their official capacity (Fox 667).”

This notion is the core of the supreme court’s holding in this case.

Same question applies to either party when they push stuff like this.

Major questions doctrine: Something conservatives on the Superme Court came up with to defeat any government action they don't like.

No, that's not what the existing laws or system rests on.

The system rests on the fact that the Commander in Chief is an elected representative, and therefore their actions represent the will of the people. Washington Post might not think he is rational. A random Judge might not think he is rational. You might not personally think he is rational. What is "rational" is determined at the ballot box, or via the impeachment process in the legislature.