You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation
Not Again

Will the Supreme Court Botch Trump’s Immunity Case Too?

Special counsel Jack Smith has made it as easy as possible for the justices to rule against Trump. But we’ve seen this movie before.

Trump at the Atlanta International Airport
Megan Varner/Getty Images
Trump at the Atlanta International Airport on Wednesday

The Supreme Court saved one of its most important cases of the term for last. Later this month, the justices will hear oral arguments in Trump v. United States, where they will consider whether a former president is immune from prosecution for any crimes committed while in office. Special counsel Jack Smith has now made an airtight case against that dubious notion, laying out why presidents are subject to the same laws as every other American—and dismantling Trump’s lawless arguments for his own lawlessness.

“Since Watergate, the Department of Justice has held the view that a former President may face criminal prosecution, and Independent and Special Counsels have operated from that same understanding,” Smith wrote in his argument brief on Monday. “Until [Trump]’s arguments in this case, so had former presidents.”

He also warned about the dire consequences of the former president’s reasoning. “[Trump] suggests that unless a criminal statute expressly names the president, the statute does not apply,” Smith noted. “That radical suggestion, which would free the president from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition—is unfounded. That rule finds no support in this court’s decisions.”

Smith’s brief is persuasive in large part because Trump’s position is so anti-constitutional—not just unconstitutional as a matter of falsity but outright hostile to the American constitutional order itself. The brief also has the virtue of being well supported by precedent, history, and tradition. The only question now is whether that is enough to persuade at least five justices on the conservative Supreme Court.

Much of the case centers around the Supreme Court’s 1982 ruling in Nixon v. Fitzgerald. The plaintiff, A. Ernest Fitzgerald, was a senior Pentagon official who testified about cost overruns before Congress in 1968, embarrassing Richard Nixon’s administration. Nixon fired him in 1970. Almost a decade after Nixon resigned in disgrace over the Watergate scandal, Fitzgerald sued him and other government officials over the incident, which he claimed was retaliatory.

The former president responded that he was immune from civil lawsuits for his presidential acts. In a 5–4 decision, the Supreme Court eventually held that Nixon and other presidents have absolute immunity from liability in civil lawsuits for their official acts. “We consider this immunity a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” Justice Lewis Powell wrote for the majority. He added that this immunity extended to the “outer bounds” of a president’s official duties.

This immunity, while absolute in that context, is not without its limits. The Supreme Court ruled in 1997, for example, that President Bill Clinton had to comply with a federal grand jury subpoena in the Paula Jones sexual harassment lawsuit because it only involved his acts that occurred before he took office. And when Trump was in office, the justices also held that he had to comply with a state grand jury subpoena by the Manhattan district attorney’s office as part of a criminal investigation.

But the Supreme Court has never had to consider whether a president can be tried criminally for acts he undertook while in office. Trump argued in his own brief that the court’s silence on the matter cuts in his direction. The deferential reasoning of Fitzgerald, he explained, applies with the same force to criminal cases as it does to civil ones.

“Functional considerations rooted in the separation of powers, which this Court emphasized in Fitzgerald, compel a finding of criminal immunity,” he claimed, quoting from the court’s 1982 decision. “The threat of future prosecution would distort the ‘bold and unhesitating action’ required of an independent chief executive, who is charged with ‘the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.’”

Unsurprisingly, Smith disagreed. He argued that the court faced a fundamentally different calculus for weighing immunity claims in Fitzgerald than it does when a former president is facing criminal trials. “The interest in enforcement of federal criminal laws is far weightier than the private damages claim at issue in Fitzgerald,” Smith argued. “And the many safeguards against unfounded federal prosecutions refute [Trump]’s argument that the Constitution requires an absolute bar against federal prosecution of a former president.”

Smith also noted that presidents are constitutionally obligated to “take care that the laws be faithfully executed” under the Constitution’s take care clause. That provision already suggests that presidential fidelity to the law is the assumption, not the exception. It would also hamper future presidents, Smith argued. “Allowing a former president to assert absolute immunity from applicable criminal laws would frustrate the executive’s constitutional authority and responsibility to enforce those laws,” he told the justices.

Trump also argued, as a practical matter, that criminal immunity was necessary for the White House to function. “From 1789 to 2023, no former, or current, president faced criminal charges for his official acts—for good reason,” he claimed in his brief for the court. “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.”

This is simply not true, of course. No former president has faced criminal charges since leaving office because they either did not commit such clear-cut criminal acts while in office or evaded responsibility for them in other ways. John Tyler, a former president who later joined the Confederacy, died shortly after the Civil War began. Nixon infamously received a pardon for his role in the Watergate scandal from his successor, Gerald Ford. In fact, Ford issued the pardon for the stated reason of avoiding a criminal trial of Nixon. If Nixon had immunity all along, no pardon was necessary.

The subtext of this particular argument also happens to be Trumpism distilled. Criminal immunity is not merely necessary to protect presidents from retaliatory prosecutions that might chill otherwise legitimate exercises of presidential power. This shield is also a sword: Without criminal immunity, Trump argued, he cannot “function” at all. Breaking the law—or at least standing above it—is essential to his broader agenda.

Smith noted that this vision of American governance is anathema to the constitutional order. “The Framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” he noted. While the Framers had created an “energetic” presidency, they also made it “accountable to justice under laws passed by Congress under Article I, enforced by the Executive Branch under Article II, and adjudicated by the courts under Article III.”

The special counsel’s office also rejected, on substantive grounds, Trump’s claim that he was acting within the “outer perimeter” of the president’s authority under Fitzgerald. Smith’s prosecution in this particular case focused on his efforts to defraud and obstruct Congress about the 2020 election results, which ultimately culminated in January 6. The most obvious point here is that orchestrating a riot and coup attempt is obviously not within a president’s official duties.

But Smith also makes an even more astute observation: Trump’s contention here doesn’t make sense even on its own terms because the president has no election powers whatsoever. “Because neither Article II nor any other constitutional provision gives the President any role in certifying the election of his successor, [Trump] cannot make a viable claim that the president’s constitutional role renders it essential for him to engage in the criminal conduct alleged in the indictment,” he noted.

One of Trump’s final and more bizarre arguments on immunity, which I’ve written about before, is based on the impeachment judgment clause. That clause says that judgment in impeachment trials “shall not extend further” than removal from office and disqualification from future office. “But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law,” it added.

The most natural reading of the clause is the one that has prevailed for the last two centuries: that the Senate can’t imprison or fine people when convicting defendants in impeachment trials and that the clause’s restriction on the Senate doesn’t foreclose future criminal prosecutions on double jeopardy grounds. In his arguments, Trump reads it backward: that a president can only be tried and convicted of a crime if he is first impeached by the House and convicted by the Senate for it.

Smith rejected that reading on precedential grounds, as well as by citing the history and tradition of the clause. But he also noted that it produced a paradox in Trump’s own arguments for immunity. “Although much of petitioner’s brief is devoted to arguments that necessarily imply that a former president can never face criminal prosecution, he acknowledges, as he must, that the Clause expressly contemplates such prosecutions,” Smith argued.

This should be the easiest Supreme Court case of all time. If the Framers had intended for presidents to be immune from criminal prosecution, they probably would have mentioned it in the Constitution. After all, they took the time to explicitly give members of Congress a limited form of parliamentary immunity in Article 1, so no one can credibly claim that the Framers didn’t consider immunity in general. And that’s all before we get to the disturbing proposition that the most powerful person in the country can commit crimes and get away with them.

Whether the Supreme Court reaches that conclusion remains to be seen. The justices’ fidelity to constitutional text has wavered this term where Trump is concerned: They essentially wrote the disqualification clause out of the Fourteenth Amendment so that he could run for president again this year without sparking future lawsuits. That self-serving ruling has received broad condemnation by legal scholars, including ones who were skeptical about disqualification and even some originalists who described it as “unprincipled” and “a disaster.”

After that shameless butchering of the constitutional text, Americans could be forgiven for wondering if the justices might botch this one too. But it should be much harder this time. Smith, through his concise and conclusive filings, has made the justices’ job as easy as possible. We’ll get our first indications of whether that was enough when the justices hold oral arguments on April 25.