In response to the prosecution by Special Counsel Jack Smith on federal charges arising out of the 2020 election and the events of January 6, 2021, President Trump claimed that as president he was entitled to immunity from criminal prosecution. After losing in the district court and court of appeals, he appealed to the Supreme Court.

The U.S. Court of Appeals for the District of Columbia had issued a unanimous opinion broadly denying the existence of any presidential immunity from criminal prosecution. The U.S. Supreme Court’s opinion, in contrast, was nuanced.

The court concluded that immunity can be available to a president facing prosecution for official acts undertaken as president. In reaching this conclusion, the court acknowledged that no provision of the Constitution explicitly grants immunity from criminal prosecution to the president. Instead, the conclusion follows from the structure of the Constitution, existing precedent on presidential immunity, and practical considerations. The separation of powers inherent in the constitutional design provides the president with authority and freedom to act within the presidential sphere. The separation of powers undergirds Supreme Court cases recognizing presidential immunity from civil lawsuits arising out of a president’s official acts, and recognizing presidential authority to resist subpoenas for documents and information.

The court explained that “[c]riminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession,” and that “[p]otential criminal liability, and the peculiar public opprobrium that attaches to criminal proceedings, are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.”  And, from a practical perspective, the threat of criminal prosecution after a president leaves office might generate “hesitation to execute the duties of his office fearlessly and fairly.”  Indeed, “[a] President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.”

With the justification for immunity thus elucidated, the court then took a nuanced approach to when that immunity would be available. The court set out a taxonomy of acts that will determine whether, and to what extent, a president can assert immunity from criminal prosecution. First, a president enjoys no immunity from prosecutions undertaken with respect to unofficial acts. The court thus rejected the broad claim of absolute immunity for all acts that former President Trump had sought. Second, the president enjoys absolute immunity from criminal prosecution undertaken with respect to acts falling with the core of presidential authority—that is, those acts authorized and recognized by the Constitution itself. Finally, with respect to acts that are official yet lie outside the core of presidential power, a president enjoys a presumption of immunity from criminal prosecution.

The court also explained that, in deciding whether an act is official—and therefore subject to at least presumptive immunity from prosecution—or unofficial—and therefore not subject to an assertion of immunity—a “court[] may not inquire into the President’s motives” for undertaking that act. In other words, an act undertaken by the president should be categorized as official if it qualifies in an objective sense for that categorization, even if the president at the time had unofficial (e.g., personal) motives for taking that act in the first place. Moreover, the court explained, immunity precludes a prosecutor from using “official conduct for which the President is immune . . . to help secure his conviction, even on charges that purport to be based only on his unofficial conduct.”

Strongly worded dissents by Justice Sotomayor (joined by Justices Kagan and Jackson) and Justice Jackson excoriated the majority opinion for putting the president above the law. However, as the majority saw it, the dissents “strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today.” 

Of potentially greater practical import is the decision concurring in part filed by Justice Barrett. She expressly declined to join the part of the majority opinion that precluded the introduction of evidence of official acts to help secure a conviction, stating instead that “on this score, I agree with the dissent.”  She acknowledged the majority’s concern that allowing evidence of official acts into evidence could prejudice the jury, but concluded that “the rules of evidence are equipped to handle that concern on a case-by-case basis.” 

The opinion of Justice Barrett still leaves a majority holding on the evidentiary point, but that majority is only five-to-four on that point, not six-to-three. It is quite possible that, once various cases wend their way through the courts, that the court will be called upon to apply its Trump v. United States holding. And, if that happens, it is conceivable the presentation of the question of immunity in more particular contexts will generate a different majority.

Nash is Robert Howell Hall Professor of Law. His areas of expertise are Administrative Law, Civil Procedure, Courts and Judges, Environmental Law, Federal Courts, Law and Economics, Legislation and Regulation, and Property Law.