Could the Supreme Court’s ruling on Trump’s immunity weaken the presidency?
The Supreme Court appeared poised to rule on former presidents’ immunity for official acts, sparking debates among legal experts. Former President Trump’s broad immunity claim faced skepticism. Justices suggested a test to differentiate “private” and “public” conduct, potentially impacting presidential power. Divisions arose among justices on the implications of limiting presidential immunity. Concerns were raised about the consequences on future presidential actions.
The Supreme Court this week appeared poised to rule that former presidents enjoy narrow immunity for official acts they took while in office, prompting divided opinions from legal experts as to whether the ruling could diminish the power of the presidency.
Former President Donald Trump did not appear likely to win big on his claim that he enjoys broad presidential immunity against the four-count indictment brought by special counsel Jack Smith over an alleged attempt to subvert the 2020 election. However, some justices on Thursday signaled they may establish a legal test to determine the difference between “private” and “public” conduct and send it back to the trial court for further consideration, which could delay the trial in that case past November as Trump again seeks the White House.
The Washington Examiner spoke to several legal experts about how such a test could diminish the power of the executive branch if the Supreme Court were to develop a concrete approach to determine whether a former president was operating in an official capacity or a private manner. Given the unprecedented nature of the case, legal experts offered divided responses about the potential impacts a ruling may have on the executive branch.
Michael O’Neill, director of legal affairs at Landmark Legal Foundation, told the Washington Examiner the outcome of an immunity test absolutely “could diminish the power of the president.”
“Prosecuting a former president for actions undertaken while serving means future presidents will have to consider whether their actions will be subject to criminal indictment after they leave office,” O’Neill said.
Gerard Filitti, senior counsel at The Lawfare Project, agreed with O’Neill’s assertion, adding that such a power subversion “would serve as a Damoclean sword” that threatens the ability of presidents to carry out their duties in office. Filitti added that the “best check” on presidential abuse may well be “an informed electorate that considers character, judgment, and temperament in addition to the political stances of a candidate.”
But experts such as veteran criminal appellate litigator Alan Dershowitz, who represented Trump during his first impeachment trial in 2020, disagreed about the Supreme Court’s eventual ruling limiting the powers of the presidency.
“No, I don’t think so,” Dershowitz told the Washington Examiner, adding, “I think if they drew a proper distinction between public and private acts it wouldn’t weaken the executive branch.”
Legal analyst and corporate general counsel Alton Harmon told the Washington Examiner he believes the court’s would-be immunity would “not really take away any power of the president.”
“It’s just making it clear that you are protected if you’re operating within the confines of your authority,” Harmon added.
Throughout the nearly three-hour Supreme Court hearing on Thursday, sharp divisions among the nine justices emerged as they grappled with an untested question: whether the doctrine of presidential immunity extends to criminal prosecution for acts undertaken by a former president while he was in office.
The three Democratic-appointed justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, signaled that a ruling for full immunity could embolden sitting presidents to commit crimes while in the Oval Office, while the six Republican-appointed justices raised worries that politically motivated charges could be endlessly brought against future presidents.
“It’s not going to stop,” Justice Brett Kavanaugh, appointed by Trump, told Michael Dreeben, who argued on behalf of the special counsel’s office. “It’s going to cycle back and be used against the current president or the next president and the next president and the next president after that.”
O’Neill stressed that a clear test could be helpful while acknowledging the potential pitfalls for setting up clear guardrails on a president’s official conduct.
“If there is no clear test for what constitutes an ‘official’ act, then a president will never be sure whether his actions could be considered private and therefore subject to prosecution. If there is a judicial test, bad-faith individuals can use the factors to mitigate the likelihood that their actions would be outside the bounds of presidential immunity,” O’Neill said.
Katie Charleston, an attorney and founder of Katie Charleston Law, said the dilemma before the court presents “a bit of a catch-22.”
“I think there is a potential that it could weaken the power of that office, because we may have presidents … second guessing themselves as to what they may say or do in each scenario, and if you think about it, a sitting president, or even a former president, will make statements in his private capacity that will affect official acts,” Charleston said.
Chief Justice John Roberts at one point criticized the unanimous ruling against Trump from the U.S. Court of Appeals for the District of Columbia Circuit that would have allowed the 2020 election case to move quickly to a trial. Roberts indicated the appeals court didn’t lay out an adequate reason for why virtually all of Trump’s actions were subject to prosecution.
Other Republican-appointed justices, including Clarence Thomas, Neil Gorsuch, and Samuel Alito, appeared more open to a middle-ground approach that could uphold some level of immunity for former presidents. Justice Amy Coney Barrett, a Trump appointee, appeared less sympathetic to the former president’s case.
Barrett at one point seemed to search for a way for Smith to keep the case moving to trial quickly, saying the special counsel could simply focus on Trump’s actions that were private and not official.
“The special counsel has expressed some concern for speed,” Barrett said, asking Dreeben if the trial court can sort out the official or private acts of the presidency or whether there was “another option for the special counsel just to proceed on the private conduct?”
Dreeben told Barrett that the indictment against Trump is significantly about private conduct, signaling that a trial could proceed even if the Supreme Court finds some immunity for Trump’s official actions.
Harmon said that Dreeben’s assessment may not be so simple if the justices send the case back to U.S. District Judge Tanya Chutkan for further fact finding on official acts after the justices put in place their new immunity test.
“Another issue is that this case can be raised back up to the Supreme Court again,” Harmon said, noting that Trump could contest Chutkan’s findings on whether certain acts he’s alleged of committing were public or private. He stressed his belief that “this is not going to get to a trial,” speculating that at most, it will “get to that evidentiary hearing about whether these facts in this case, as outlined in the indictment, are official or personal private ones.”
The four charges Trump faces in Smith’s Washington, D.C., indictment rely on three criminal statutes: a count of conspiring to defraud the government, another of conspiring to disenfranchise voters, and two counts related to corruptly obstructing a congressional proceeding.
The Supreme Court is also preparing to deliver a decision in the case of a Jan. 6 defendant who is facing the same charges as Trump, Section 1512(c)(2), or corruptly obstructing an official proceeding, which could result in the justices finding that statute was misapplied to Trump and hundreds of Jan. 6 defendants. That result would mean half of Smith’s four-count indictment against Trump would be wiped out.
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Trump, who is facing 88 charges across four criminal cases as he seeks another four years in the Oval Office, has pleaded not guilty in each case. He is currently spending four out of seven days each week in a “cold” Manhattan courtroom for a trial over the Democratic district attorney’s 34-count indictment alleging he fudged business records to conceal a hush money payment to a porn star in the furtherance of an additional crime.
“If a President doesn’t have IMMUNITY, he/she will be nothing more than a ‘Ceremonial’ President, rarely having the courage to do what has to be done for our Country,” Trump posted to Truth Social on Thursday, adding that would be the “end of the Presidency, and our Country, as we know it.”
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