The Assassination Hypothetical Isn’t Even the Scariest Part of the Supreme Court Immunity Ruling
The Supreme Court’s decision on presidential immunity is a catastrophe for American constitutional order.
Chief Justice John Roberts’ majority opinion holds—for the first time in U.S. history—that presidents have immunity from criminal prosecution that ordinary citizens do not. Roberts then divides presidential conduct into three, wholly new classes: exercises of “core constitutional powers,” “official act[s],” and “unofficial acts.” Exercises of “core” presidential powers garner “absolute immunity” from prosecution. “Official acts” are “presumptively” immune. “Unofficial acts” enjoy no immunity.
No part of this structure is grounded in the text or original understanding of the Constitution. Roberts testily dismisses as unconvincing the powerful textual and founding-era evidence in Justice Sonia Sotomayor’s dissent (laid out in even greater detail in this amicus brief, of which I am a signatory). But tellingly, he and the other five avowed originalists who signed on to the majority opinion don’t even try to construct an originalist rationale of their own.
When originalists simply ignore everything done, said, and understood by those who wrote and ratified the Constitution, you know you are reading an exercise in power, not principle.
But even exercises in unprincipled judicial power sometimes produce sensible results. This one does not.
Analysis of the first portion of the court’s immunity structure—exercises of “core” presidential powers now made absolutely immune from prosecution—illustrates the bankruptcy of the whole.
The court offers no definition of core presidential powers. The idea seems to be that core powers are those the Constitution grants exclusively to the president and over which Congress and the courts exercise no authority at all. Given the tiny number of powers expressly granted by Article 2 to the president alone—the pardon power, the commander-in-chief power, the power to nominate (though not to confirm) judges and certain federal officials, and one or two others—this category should be so small as to be inconsequential. But, undaunted by its originalist commitments, the majority blithely adds several others, notably the power to dismiss presidential appointees and the power of prosecutorial discretion to investigate and prosecute crime, and leaves the door open for further expansion.
Consider the court’s discussion of three of the powers it deems core—pardoning, removal of executive officials, and prosecutorial discretion.
Roberts treats the award of pardons as the paradigm of a core presidential power for which presidents have absolute immunity.
But his understanding of the pardon power is just wrong. It is true that presidents can grant pardons to whomever they wish. And, as I have argued elsewhere, presidential pardons once issued cannot be voided or modified by Congress or the courts. In other words, as to the person pardoned, the exercise of the president’s power is irrevocable and absolute. But that the president has the power to issue nonvoidable pardons does not in the slightest imply that he can issue them for any reason whatever with no consequence to himself.
To hold otherwise is to say that presidents can openly offer pardons as quid pro quo exchanges for monetary bribes, political contributions, tenders of business concessions for themselves, or offers of employment to friends and relatives. For centuries, the British crown filled royal coffers by openly selling pardons. Roberts’ opinion offers no barrier to a return to those glorious days of yore.
Likewise, his opinion necessarily implies that presidents can use pardons to protect themselves from criminal liability (even in the limited class of cases the court has left open for prosecution), impeachment, or any other unpleasantness.
In 1974 the House Judiciary Committee approved an article of impeachment against Richard Nixon for obstruction of justice, based in part on Nixon’s “dangling” offers of pardon to his Watergate co-conspirators in order to persuade them not to talk. At the time, few apart from Nixon’s most die-hard defenders would seriously have suggested that this conduct was not both impeachable and indictable. Indeed, the consensus on the issue was surely one of the reasons Gerald Ford felt it necessary to pardon Nixon.
Much has been made of the fact that, under Roberts’ opinion, a president who ordered the military to assassinate a political rival would enjoy at least presumptive immunity for their official acts. But this lurid hypothetical, though an accurate description of Roberts’ new rule, can too easily be dismissed as paranoid hyperventilation. Far more troubling is that Roberts’ construct of presumptive presidential immunity for all official acts plus absolute presidential immunity for any pardon grant opens the door to a regime of impunity for presidentially sanctioned crime and oppression by the entire executive branch.
Following an offer from the president’s son of a lucrative private-sector job, the head of the National Park Service illegally grants the president’s family and favored political supporters control of all lodging and concessions in the parks. Son and NPS head—pardoned.
In response to pressure from the chair of the president’s national political party, the head of the Bureau of Land Management adopts a policy that only companies headed by presidential donors will receive oil leases on federal land. Party chair and BLM chief—pardoned.
Border Patrol officers, at the president’s direction, set up mass open-air detention camps for undocumented immigrants in which the inhabitants are provided insufficient food and only tarps for shelter, are given no medical care and no access to courts to contest the legality of their detention, and are beaten senseless if they protest. Pardoned.
National Guardsmen, ordered by the president to peaceful demonstrations against administration policies and told to “rough ’em up,” maim, and kill protesters. Pardoned.
In every such case, the president who ordered, sanctioned, or benefited from the crime would enjoy at least presumptive immunity under the court’s new rules for any official acts taken in conjunction with the criminal act. His family, political allies, and criminal subordinates would receive the complete immunity afforded by a pardon. And the president would have absolute immunity for pardoning his relatives and minions. Impunity from the law is the defining feature of autocracies and kleptocracies around the world. The Supreme Court just welcomed impunity to America.
Even worse than the court’s treatment of pardons is its holding that the president’s authority to remove subordinate officials and control over the Justice Department’s exercise of discretion to investigate or prosecute crime are core powers enjoying absolute immunity.
In the present case, the court applies this ruling to excise from Jack Smith’s indictment allegations that Trump asked the DOJ to pursue sham investigations into supposed election fraud in order to persuade states not to certify Joe Biden’s win and threatened to dismiss the acting attorney general if he did not go along with it.
This result is bad enough, but the implications of the court’s new rule are terrifying. A president now enjoys “absolute immunity” if he orders the Justice Department to undertake a program of factually meritless investigations and prosecutions of his political enemies, even if he expressly avows that the purpose is retribution for past political opposition and a desire to hamstring his party’s opponents for the future. (Remember: DOJ officials who follow the president’s illegal orders can, under the court’s new rule, be pardoned at no legal risk to the president.)
One can imagine the court’s defenders responding to these hypotheticals by protesting that obviously corrupt and dictatorial exercises of even core powers would surely be prosecutable under appropriately drawn statutes. But in that case, the immunity conferred by Roberts’ taxonomy would not be absolute at all. And he gives no indication that immunity for exercises of “core” powers is in any sense conditional.
Moreover, elsewhere in Roberts’ opinion, he writes that courts trying to determine the immunity category into which presidential conduct falls (core powers, official acts, unofficial acts) may not consider the president’s motives. This is complete madness. In any case of criminal misuse of official power, the distinction between criminal and noncriminal behavior almost invariably rests on why the defendant took official action. A judge who dismisses a criminal case on the ostensible ground of insufficient evidence is merely exercising a core power of the judiciary. But if the evidence shows that the judge did so because they were offered a bribe, their motive renders the act criminal.
If courts may not consider presidential motive in deciding whether an exercise of presidential power is criminal, then the Supreme Court’s supposed distinction between absolute immunity for core powers and presumptive immunity for other official conduct is entirely illusory because the evidence necessary to rebut the presumption becomes inadmissible.
The Framers of the American Constitution understood that a corrupt or demagogic president could wreck the system they were creating. Accordingly, they erected barriers against that eventuality. They gave Congress multiple means of checking presidential authority through legislation. They created impeachment to remove truly bad presidents from office and bar them from returning. And they unmistakably believed that presidents who employed their powers to usurp the constitutional order through criminal conduct could be deterred by the prospect of prosecution in the courts.
For decades, Congress has progressively abdicated its responsibility for checking presidential excess by legislation. In the current moment, the MAGA cult that dominates the congressional Republican Party has raised slavish acceptance of whatever their once and perhaps future president demands to an absolute imperative. In Trump’s previous term, Congress demonstrated that party loyalty has rendered impeachment a nullity. By effectively exempting presidents from any realistic threat of prosecution for criminal abuses of their powers, the Supreme Court has now removed the final obstacle to presidential dictatorship.
Be afraid.