Maybe Immune: Understanding the Supreme Court’s Ruling in Trump v. United States
The Supreme Court of the United States recently issued a decision about when and if a President is immune for his potential criminal conduct, in examining the case of Trump v. United States. The answer is maybe.
In Trump v. United States, the Justices of the Supreme Court considered a criminal indictment of former President Donald Trump in deciding if certain actions of a President may be immune from criminal prosecution. The majority concluded that there are three categories of acts that will determine if immunity may attach to a President’s conduct while in office.
The Court held that where a President acts pursuant to the powers granted to him under the United States Constitution or pursuant to an act of Congress, the President is “absolutely” immune. This, the Court stated, is where the President acts and his authority is both “conclusive and preclusive,” meaning that the President’s act is the final word on a subject and the President as the head of the Executive branch is the only person able to exercise that authority. Certain acts for which the President maintains such authority include commanding the Armed Forces, granting pardons, signing or vetoing bills that Congress passes, and making recognition determinations of foreign countries.
The Court also held that there are instances in which the President’s acts and resulting immunity may be “presumed.” Presumptive immunity, the Court says, will attach to “official acts” that a President undertakes. According to the Court, “official acts” are Presidential “acts within the outer perimeter of the President’s official responsibility,” or acts that are not “manifestly or palpably beyond [their] power.”
“Unofficial” acts, private acts, and acts that are done not in an official capacity are not granted any immunity at all. This decision in Trump v. United States affirms that the law remains that prosecutors may criminally prosecute a President for his or her private acts.
To distinguish between “official” and “unofficial” acts of the former President, the Supreme Court referred the issue back to the trial court to determine, after briefing. As the dissent pointed out, the majority does not provide a “standard to reliably distinguish between a President’s ‘official’ or ‘unofficial’ conduct.” This lack of guidance may create confusion in the future as trial courts, and specifically the trial court overseeing Donald Trump’s criminal case, wade into unknown territory in trying to fashion a meaningful guidepost for labelling the former President’s conduct.
While Trump v. United States will have an immediate impact on the criminal trial of Donald Trump, the majority of Justices emphasized that its holding with respect to immunity is not for one person only, but rather for the office and officeholder of the Presidency.
This is not to be considered legal advice. Please reach out to an attorney for information regarding your specific situation.
Lauren E. Scott is an associate concentrating in litigation services.
She can be reached by phone at 845-764-9656 or by email.