Document Type

Article

Publication Date

2025

Abstract

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly imposed legal obligations? Or is it an immunity from being subjected to the jurisdiction of judicial tribunals in suits seeking to impose validly prescribed legal sanctions?

The implications of the Trump decision vary dramatically depending on the type of immunity the Court recognized. If the immunity is from the substantive operation of the law, then the impugned presidential conduct is not illegal. The President would be exempt not only from criminal prosecution but also from civil damages and even prospective relief. Subordinates carrying out the President’s orders within the scope of the immunity would similarly be exempt from these forms of relief. And, depending on the basis for finding the President’s conduct to be legal, the President’s conduct might not constitute “high crimes” or “Misdemeanors,” and accordingly the President would not be impeachable for performing or ordering such acts. If the immunity is merely from criminal sanctions, on the other hand, the impugned conduct might well be illegal, and, if it is, the President would be subject to noncriminal sanctions and her subordinates even to criminal sanctions.

The Court’s opinion leaves unclear the nature of the immunity the President enjoys. Justice Barrett’s concurring opinion, which she regarded as consistent with Chief Justice Roberts’s majority opinion on this point, appears to understand Trump immunity as an immunity from primary obligations. Chief Justice Roberts’s opinion analyzes separately the President’s immunity with respect to conduct for which the President’s authority is “conclusive and preclusive” and the President’s immunity with respect to conduct that may be regulated by Congress. An immunity for conduct that is within the President’s “conclusive and preclusive” authority would appear to be an immunity from the substantive operation of a congressionally imposed criminal prohibition. An immunity for presidential conduct that Congress has the power to regulate could be an immunity from criminal sanctions for violation of validly imposed obligations, but the Roberts opinion at times suggests that the President’s immunity with respect to conduct in this category is an immunity from the operation of generally applicable criminal prohibitions.

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