The Supreme Court's highly anticipated presidential immunity decision not only struck down some of the federal election interference charges against former President Donald Trump, but also breathed life into what many had considered a far-fetched legal theory: immunity for assassinating rivals and other acts of dictatorial control, legal experts said.
“This is a potentially very dangerous statement about something Donald Trump never did: He could have sent in the military to support the insurrection on January 6th,” Richard Painter, who served as White House ethics counsel for President George W. Bush, told USA Today. “In many countries, that's how democracies turn into dictatorships,” Painter said.
The Supreme Court's conservative majority ruled on July 1 that the president has complete immunity from prosecution for acts he performs through the core constitutional powers of his presidency. They specified that those core powers include presidential pardons and communications with the attorney general, but did not list all of the powers included.
The court's Republican-appointed justices also said the president is at least presumed to be immune from liability for all official acts of his presidency, and potentially may always be immune from liability, though he could still be prosecuted for non-official criminal acts.
The opinion is open to interpretation, including what constitutes core authority and what is an official act. Painter said that presents a dangerous weapon for politically appointed lawyers, who tend to write memos that give the president legal grounds to push the boundaries.
“The lawyers have accepted this opinion and are going to implement it,” Painter said.
Stephen Vladeck, a professor at Georgetown University Law Center, said on the Just Security podcast that Chief Justice John Roberts, who wrote the majority opinion, could have pushed back against Justice Sonia Sotomayor's dissenting opinion about what specific conduct is and isn't immune from liability, but didn't.
“The problem is that smart lawyers, and even not-so-smart lawyers, can dissect this opinion for whatever purpose they want,” Vladeck said.
Assassination of a political opponent
The Supreme Court's majority opinion did not address whether a president would be immune from prosecution if he assassinated a political opponent while in office.
Many found that omission conspicuous, given that Justice Sotomayor's dissent (joined by her fellow Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson) accused the majority of covering up that very thing.
“Ordering Navy SEAL Unit 6 to assassinate a political opponent? Immunity,” Sotomayor wrote.
Rather than reject Sotomayor's arguments, Roberts countered that opponents were “fear-mongering based on extreme hypotheticals” while overlooking the risk that the president could be so afraid of prosecution that he “cannot carry out his duties boldly and fearlessly.”
Leah Litman, a University of Michigan law professor who clerked for former Supreme Court Justice Anthony Kennedy, pointed to a section of the majority opinion that said Trump would be immune from prosecution for alleged conduct involving discussions with Justice Department officials, including requesting bogus election fraud investigations to persuade states to replace the legitimate presidential electors, on the legal podcast “Strictly Strictly.”
“By the same logic, the courts can say that a president's orders to the military are completely immune even if he issues them for personal gain, political vendetta or any other reason.,“The opinion is unclear on this point, at least,” Litman said.
Some experts expressed skepticism about whether the court would actually allow such a move, and whether the question even matters.
Andy Grewal, a University of Iowa law professor who wrote a paper on presidential immunity, told USA Today that he doesn't believe killing a political opponent is a formal act protected by the Supreme Court, noting that the Supreme Court has never said that the Constitution's Commander in Chief Clause means the president can kill whoever he wants.
“My point is, the issue is irrelevant,” Grewal added. “If a president can kill a political opponent with impunity, who is going to prosecute him? The president can just kill the prosecutor. If the judge says it's illegal, the president can just kill the judge.”
William Board, a University of Chicago law professor and former Roberts law clerk, said on the legal podcast “Divided Argument” that a president's use of force domestically may not be considered a core power that provides absolute immunity, even if actions overseas during wartime are. In that sense, he said, it's unclear whether a president would be immune after ordering SEAL Team Six to assassinate a political opponent.
“Maybe because it's a formal act there's a presumption of immunity, but maybe you can rebut the presumption of immunity,” Bode said.
Exchanging the President's favor for a bribe
Sotomayor also argued that the Supreme Court's conservative wing has granted immunity from prosecution to presidents who exchange pardons for bribes.
Roberts did not deny the allegations, but did raise the possibility of a bribery charge against the president, but even then, he limited the evidence prosecutors could present to prove the president performed official duties in exchange for bribes.
Roberts said a jury could not consider evidence of conduct covered by presidential immunity, even for the limited purpose of proving that the president committed a crime through unofficial conduct.
Justice Amy Coney Barrett signed the rest of the majority opinion but refused to sign that part, writing separately that excluding any reference to official acts exchanged for bribes “would hamstring prosecutors. ” Justice Roberts countered that while prosecutors can point to public records showing that the president acted in official capacity, they cannot seek the testimony or private records of witnesses investigating official acts.
“They don't want us to say, 'This conduct is clearly wrong and all of the president's advisers said it was wrong, so that supports the inference that the president must have been taking bribes,'” Bode said of that part of the ruling.
Election interference and political prosecutions
Trump has repeatedly threatened to use the Justice Department to prosecute his rivals, and in 2016 he blasted Hillary Clinton, calling for “lock her up,” even though Republican FBI Director James Comey rejected a recommendation to prosecute her for using a private email server as secretary of state.
Similarly, former Trump adviser Steve Bannon recently said a future Trump administration would “go after” Comey and his successor, Andrew McCabe, who investigated Trump's alleged collusion with Russia during the 2016 campaign.
In some ways, the ruling appears to restrain presidents from trying to prosecute or harass their rivals, since they cannot prosecute their predecessors for protected official acts.
But especially with regard to a possible second Trump term, Trump may reconsider the Justice Department's decision not to prosecute President Joe Biden for his alleged mishandling of classified documents, even though the charges against Biden relate to the period after he left the vice presidency and therefore do not appear to be relevant to the presidential immunity debate.
Conservative arguments in favor of the Deep State
Another potential constraint on the president is indirect. An immunity ruling may protect the president, but not necessarily his subordinates. For example, the ruling does not appear to protect someone like Jeffrey Clark, the Trump administration Justice Department official indicted in Georgia on election interference charges. This could give executive branch officials an incentive not to follow the president's illegal instructions.
“I think the president has immunity, but his subordinates don't,” Barbara McQuaid, a former federal prosecutor who teaches at the University of Michigan Law School, told the legal podcast “SistersInLaw.”
But the ruling would allow a president to pardon subordinates who, for example, assassinate a rival, “so they can get away with abusing their power in this way,” McQuade said.
But because presidential pardons apply only to federal crimes, pardonees can still be prosecuted for state crimes. In contrast, the Supreme Court's ruling means that former presidents themselves cannot be prosecuted by state or federal prosecutors for protected official conduct.
Leaving aside any questions of legal immunity surrounding such a premise, Grewal suggested that the Washington bureaucracy could be a bulwark preventing the president from trying to take over big offices.
“If Trump becomes president, I would be shocked if there were a series of criminal investigations against Biden and others because there would be so much internal resistance,” Grewal said.
Justice Samuel Alito made a similar point during oral arguments before the Supreme Court on political assassinations.
“I don't want to denigrate SEAL Team Six,” Alito said. “They are honorable officers and are required by the Uniform Code of Military Justice not to follow illegal orders.”
The Heritage Foundation, a Washington, D.C.-based conservative think tank, has drawn up a nearly 900-page plan titled “Project 2025” that would abolish several government agencies and replace tens of thousands of employees with supporters under the next conservative president.
President Trump has sought to distance himself from the project, posting to Truth Social on July 5th that some of the proposals were “totally ridiculous and terrible” and that while he wished well to backers of the project, he “has nothing to do with them.”
But the project involves several Trump allies, including Trump adviser Stephen Miller, and its director, Paul Danz, was chief of staff at the Trump Office of Personnel Management.
The immunity ruling could also give Trump further protection if he were to order the attorney general to drop two federal charges for allegedly meddling in the federal election and mishandling classified documents. Before the ruling, Trump could have faced obstruction of justice charges if he did so, but the Supreme Court has held that the president has absolute immunity both with respect to his interactions with the attorney general and with respect to his removal from office.
