Immunity Politics

By Tom Lamia

In agreeing to hear an appeal from the D.C.  Circuit Court of Appeals last year in the case of Trump v. United States, the Supreme Court opened a door to a constitutional labyrinth. Article II of the Constitution prescribes powers and duties of the president either acting alone (to grant pardons and commutations) or with Congress (to appoint officers and ambassadors). These are weighty and immensely consequential powers, deserving of protection from censure. No grant of immunity from prosecution or other legal redress is given in Article II or elsewhere in the Constitution. Before the transfer of power debacle of January 6, 2021, presidential immunity to shield a president had not been a necessary issue for decision. 

In Trump, the Court took the fateful step of accepting an appeal from a lower court decision not to dismiss a criminal indictment of Trump for allegedly conspiring to overturn the 2020 election. Trump’s position was that he had absolute immunity for his actions. The wisdom of having avoided the immunity issue for centuries was set aside. The Court opened a proverbial can of worms in finding that a president does have immunity in certain factual and legal circumstances. Defining those circumstances required some tortured reasoning and opaque hair-splitting that sent a shock wave through the legal and political world.

The law established by Trump creates layers of analysis requiring legal definition and factual analysis by courts and juries. Vague terms of art: “outer perimeter of official responsibilities,” “core of official duties,” “within his conclusive and preclusive constitutional authority” must be plumbed and resolved. Immunity can be absolute or presumptive. Motive cannot be considered nor can potential consequences. Where the president has the power to act alone, i.e. without Congress, he has absolute immunity and, therefore, the constitutional framework of the separation of powers may preclude Congress from diluting this new absolute immunity. There is more, unfortunately. It is enough to say that the outcome of these murky explorations is a search among unknowns.

The dissenting opinion of Justice Sotomayor, joined by Justices Kagan and Jackson, raises questions that cannot be ignored or dismissed as no longer relevant now that there is a definitive opinion on immunity. Essentially, each of these justices are aghast at what lies ahead. They see unchecked presidential power that may lie beyond any practical ability to rein in lawlessness. The notional structure is that of core powers, official acts, unofficial acts, absolute immunity, presumptive immunity and no immunity. The categories and consequences seem too tortuous to easily navigate. I won’t try. In essence courts must now analyze in each case whether the crimes charged apply to the president, using the elements described above. The case may not go forward to trial until a court has ruled that immunity does not apply.

The possibilities are frightening. A lawless president, using unrestrained presidential power, is an open door to “moving fast and breaking things” on a grand scale. So far President Trump is playing his role with great skill. This new immunity structure that applies only to presidents offers nearly total freedom from legal accountability. Bold actions will result. The Court has constructed an accommodating vehicle for an aggressive president. He can do anything he wants to do with no one to answer to and no consequences for breaking the law. Within the fuzzy limits of official acts, that include any action within the outer perimeter of his official duties, he is immune from criminal charges. We have seen already the great scope of this freedom. He can use this expansive power for good or evil: to charge corruptly through legal barriers that no longer apply or to use this new freedom to accomplish great things. Which will it be? Utopia or Armageddon? 

So far, both are at work. President Trump is single-handedly restructuring government agencies, eliminating watchdogs, taking direct control of military, justice, health, border control, science research, civil unrest, law firms, universities, and more; touching on every aspect of American and international affairs that stir his interest. Elections may restrain him and his MAGA movement, but they are far off and subject to his capacity, through immune behavior, to control or cancel.

George Washington warned in his farewell address that a government with a weak executive would be “too feeble” to stand up to partisanship (“the enterprises of faction”) and would lead to the “frightful despotism of alternate domination of one faction over another, sharpened by the spirit of revenge.” To avoid that cycle, “properly distributed and adjusted” government powers are needed. The opinion for the Court in Trump suggests that this new presidential immunity structure is such an adjustment. 

As we await elections to come, both sides, MAGA Republicans and liberal Democrats, are heavily engaged in a lopsided contest for the nation’s political favor. The Democrats have ground to make up and the president’s immunity power is yet another barrier for a return to power. The courts can and will nibble at the edges of MAGA control as presidential programs are put into effect and are challenged in the courts. These issues will slowly rise to the Supreme Court, where a 6-3 conservative majority awaits. Citizens’ organizations, desperate to mobilize dissent await their opportunity to lead unhappy voters to the polls. If charismatic leaders emerge to unify these unhappy people, the scales could tip enough to give voice to their laments over lost power. The need is clear and urgent, the means less so.

The Court’s immunity decision was a watershed in the history of the presidency. This immunity decision requires legislative review and adjustment. That will not happen without Democratic wins in 2026. In Trump, the Court found a critical link to the Constitution’s separation of powers framework, noting that the presidency is a one-person separate branch of government. It will be argued that Congressional action to clarify or limit presidential immunity is unconstitutional.