Last Friday, the Supreme Court declined a petition by Special Counsel Jack Smith to decide quickly whether former presidents are immune to criminal prosecution for offenses committed while in office. The Court’s unsigned order may have been influenced by the apparent determination of the U.S. Court of Appeals for the D.C. Circuit—as evidenced by its accelerated briefing schedule—to address that issue expeditiously.
What the Court’s order should not suggest is that the substantive issue is in doubt. In his most famous opinion, Marbury v. Madison, Chief Justice John Marshall wrote that not every constitutional question of deep political and legal importance is of “an intricacy proportioned to its interest.” Sometimes even fundamental questions of constitutional interpretation can yield a single, straightforward answer. The question whether former president Donald Trump enjoys immunity from criminal prosecution is a pressing current example. The answer is “No.” Every acceptable theory of constitutional interpretation and every conventional source of guidance to the divination of constitutional meaning all point to the same conclusion. Whether sitting presidents may be charged with crimes while in office is a difficult question; whether former presidents may be charged is not.
Before checking off all the legal arguments, as Judge Tanya S. Chutkan did persuasively in her thorough opinion of December 1, it is worth remembering that presidents other than Donald Trump have assumed the susceptibility of former presidents to criminal prosecution. President Gerald Ford’s pardon of Richard Nixon for Nixon’s Watergate-related crimes was explicitly based on what Ford took to be the natural alternative: a criminal trial. “After years of bitter controversy and divisive national debate,” Ford said, “I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.” Likewise, Nixon’s terse acceptance of the pardon—although never quite saying, “I’m guilty”—included no suggestion he would otherwise have been immune to prosecution.
For his part, Bill Clinton, in the waning hours of his second term, made a plea deal with independent counsel Robert Ray, under which Clinton agreed to pay a civil fine, accept suspension of his law license, and admit to testifying falsely in the Paula Jones sexual harassment case, in exchange for Ray’s commitment not to seek indictment. During the Whitewater investigation, conservative constitutional law scholar Ronald Rotunda had already advised Ray’s predecessor, Kenneth Starr, that even sitting presidents were subject to criminal indictment.
These presidents’ assumption of criminal jeopardy was well-founded. Start with the constitutional text. There is not a word in the Constitution granting presidents immunity from criminal prosecution. This silence contrasts starkly with the explicit constitutional provisions regarding the immunities of members of Congress. The Framers determined that federal legislators “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.” In other words, legislators can never be held criminally liable for “any speech or debate in either House,” while in office or otherwise. The drafters knew of the concept of official immunity and understood how to delimit it carefully.
Of course, unadorned textualism is typically not the approach to constitutional interpretation preferred by Justices or by constitutional scholars. As the late legal scholar Charles Black famously explained, the structures created by the Constitution and the relationships among them sometimes imply underlying principles not otherwise made explicit. For example, the Constitution does not specify any form of executive privilege to protect the confidentiality of presidential communications. Yet the Supreme Court determined in United States v. Nixon that, without at least some qualified protection against the mandatory disclosure of those communications, the executive could not function as a branch co-equal with Congress and the judiciary in a system of checks and balances.
It was primarily based on Nixon’s functional analysis—resting on the pragmatic need to avoid disrupting the orderly discharge of a president’s functions—that the Justice Department’s Office of Legal Counsel (OLC), the most important source of constitutional interpretation for the Executive Branch, argued in both 1973 and 2000 that sitting presidents may not be federally indicted. However, because former presidents have no constitutional duties to execute, there is no threat to the exercise of constitutional duties that would justify presidential immunity once out of office. OLC opinions assumed as much. The 1973 opinion explicitly suggested that to protect the prospect of prosecuting a former president, Congress might enact a statute tolling the statute of limitations—that is, effectively extending them—for crimes presidents commit during their terms. The 2000 opinion explained that “the immunity from indictment and criminal prosecution for a sitting President would generally result in the delay, but not the forbearance, of any criminal trial.”
Trump’s arguments in favor of immunity rest on two prongs. The first is that, in a 5-4 decision in 1982, Nixon v. Fitzgerald, the Supreme Court recognized “absolute Presidential immunity from [civil] damages liability for acts within the ‘outer perimeter’ of his official responsibility.” That case involved a suit for damages by a Department of the Air Force whistleblower who argued he had been unlawfully terminated from his federal management position in retaliation for truthful testimony he had provided to Congress. The Court held that a wide scope of presidential immunity was justified in the civil context for several reasons: The public interest in private damages suits is less weighty than its interest in criminal prosecution. Subjecting presidents to civil suits, which any aggrieved individual could initiate, would open the door to frequent and undue judicial scrutiny of the president’s discretionary responsibilities. And in the exercise of official duties, often implicating intense political controversies, “there exists the greatest public interest in providing an official ‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.”
None of the Fitzgerald rationales applies to the prospect of criminal prosecution. The Court itself made the distinction: “When judicial action is needed to serve broad public interests—as when . . . the Court acts . . . to vindicate the public interest in an ongoing criminal prosecution,” the exercise of judicial power is warranted, and immunity is inappropriate. Moreover, as Judge Chutkan pointed out in her December 1 decision, vulnerability to criminal prosecution does not leave former presidents at the mercy of every aggrieved individual willing to hire a lawyer. As she wrote: “The robust procedural safeguards attendant to federal criminal prosecutions . . . reduce the likelihood that former Presidents will be unjustly harassed.” Federal felony charges require grand jury indictments. And grand juries, as the Supreme Court said in 2020, are “prohibited from engaging in ‘arbitrary fishing expeditions’ and initiating investigations ‘out of malice or an intent to harass.’” Finally, a president constitutionally obligated to “take care that the laws be faithfully executed” cannot be excused for “fearlessly” committing crimes. Such immunity would make a mockery of his constitutional duty.
Trump’s argument to the D.C. Circuit, filed on December 23, seeks to evade these compelling points by insisting there is no precedent for contemplating the prosecution of a former president for his “official acts.” He argues that all of the conduct for which he has been indicted “reflect[s] President Trump’s efforts and duties, squarely as Chief Executive of the United States, to advocate for and defend the integrity of the federal election, in accord with his view that it was tainted by fraud and irregularity.” By way of supposed contrast, Ford’s pardon of Nixon, according to Trump, was motivated by Nixon’s vulnerability to prosecution for “alleged involvement in a range of potentially criminal private conduct,” such as tax evasion. But this ignores Nixon’s greatest criminal vulnerability: his exposure to indictment for obstruction of justice. If Trump’s claim is sound that his supervisory communications with Justice Department officials were within the “outer perimeter” of his duty then so, too, were Nixon’s with his senior advisors—the attempted coverup of Watergate. Corrupt presidential communications do not fall within the scope of presidential discretion that the Constitution protects from judicial supervision. Independent counsel Robert Mueller reached the identical conclusion in his report on the investigation into Russian interference in the 2016 presidential election.
Trump contends that presidents cannot be prosecuted for crimes in office unless they have been impeached and convicted. A lengthy 2000 Office of Legal Counsel opinion reached the opposite conclusion, which is notable considering that the sitting President, Bill Clinton, would have benefitted from a different answer. OLC found that its conclusion “accords with the text of the Constitution, reflects the founders’ understanding of the new process of impeachment they were creating, fits the Senate’s understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials.”
No court comprising constitutional originalists will uphold Trump’s arguments. History is against him. The Framers intended to divorce the American impeachment process from the criminal process. While British impeachments could and often did entail criminal sanctions imposed by Parliament, impeachment in the American context was to be entirely a political remedy to enable the removal of federal officials engaged in grave abuse of office. The Constitution provides that impeachment and conviction still leaves the removed official “liable and subject to indictment, trial, judgment and punishment, according to law.” Conversely, the House and Senate have impeached and removed officials previously indicted and tried for their criminal offenses in court, whether convicted by a jury or acquitted. The two modes of adjudication are constitutionally unrelated.
In sum, constitutional text, history, institutional practice, and pragmatism converge on the same result. And all are rooted in the same fundamental principle—the rule of law. John Marshall also wrote in Marbury v. Madison that “the Government of the United States has been emphatically termed a government of laws, and not of men.” To adopt his language, “it will certainly cease to deserve this high appellation” if presidential criminality is forever beyond the law’s reach.
