Presidents Can’t Be Prosecuted for Doing Their Jobs | Opinion

“When a president does it, that means it is not illegal,” Richard Nixon famously said. The former president has long been pilloried for thus suggesting that our nation’s chief executive can do whatever he wants with complete impunity. Well, on Monday, the last day of its term, the Supreme Court basically said, “it depends”—and it’s right.

That doesn’t mean that the president gets to commit crimes or break the law, but it does mean that the very nature of federal executive power means he can’t be prosecuted for most actions done within the context of his official responsibilities. As Chief Justice John Roberts put it for a six-Justice majority in Trump v. United States:

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

Although Donald Trump supporters are crowing and antagonists are wailing, that rather common-sensical presidential-immunity decision doesn’t absolve the former president or make the occupant of the White House into a king. Indeed, the ruling was both eminently predictable and, in any other context, utterly unremarkable: presidents are immune from prosecution for official acts but not for unofficial ones—and the devil of how that rule applies lies in the details of lower-court evaluations of a particular president’s actions. In other words, a president can’t be charged with murder for ordering drone strikes against suspected terrorists (even if acting on bad intelligence), but can for shooting someone on Fifth Avenue.

So it will now be up to D.C. district judge Tanya Chutkan—and then the D.C. Circuit on appeal—to determine whether President Trump took the election-related actions for which he was indicted in his official or personal/candidate capacity. (Special prosecutor Jack Smith‘s indictment alleges that, after losing the 2020 election, Trump conspired to obstruct its certification in various ways, but a couple of those charges will likely be dismissed after the Court’s separate ruling on Friday regarding a key obstruction statute.)

The problem that the Court faced is that it had to issue a ruling that would apply not just in the peculiar case of Donald Trump, or even with regard to allegations that a president interfered with vote-counting or the transfer of power, but for all potential presidential actions. As Chief Justice Roberts put it, “unlike the political branches and the public at large, we cannot afford to fixate exclusively, or even primarily, on present exigencies.” And so he crafted an opinion that distinguishes “core” presidential powers (such as commanding the armed forces or appointing ambassadors), the exercise of which affords absolute immunity, from the “remaining” ones, for which there is presumptive immunity, all the while noting that all parties agree that there’s no immunity for unofficial acts.

All that is intuitively correct and follows from the longstanding precedent from Nixon v. Fitzgerald (1982) that presidents can’t be civilly liable for official acts either. Indeed, the threat of criminal prosecution would be even more burdensome on presidential actions than the threat of being assessed civil damages.

That said, Justice Amy Coney Barrett, who joined all but one section of the majority opinion, has a point in saying that she “would have framed the underlying legal issues differently.” It’s not so much “immunity” that’s at issue but the constitutionality of a criminal statute that purports to be applied to official acts. And so, she would apply a two-step test: “The first question is whether the relevant criminal statute reaches the President’s official conduct…. If the statute covers the alleged official conduct, the prosecution may proceed only if applying it in the circumstances poses no ‘danger of intrusion on the authority and functions of the Executive Branch.'” There she quotes the majority opinion, which in turn is quoting Fitzgerald.

In other words, Barrett concludes, “The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge.”

To my mind, that’s the other side of Roberts’ reasoning, a semantic distinction without a practical difference. “True, there is no ‘Presidential immunity clause’ in the Constitution,” Roberts writes. “But there is no ‘separation of powers clause’ either.” Nor is there a “judicial review clause,” I would add; there are plenty of structural aspects to our Constitution that aren’t explicitly stated therein.

In sum, while I’ve often criticized Chief Justice Roberts for his split-the-baby minimalism, here he did well to issue a narrow and careful opinion, guiding judges without pre-judging this case. Nixon’s quip is still wrong as a categorical statement, but he, Trump, and all other presidents (including Joe Biden) are rightly immune for official acts that further their executive-branch responsibilities.

Ilya Shapiro is the director of constitutional studies at the Manhattan Institute and author, most recently, of the forthcoming Lawless: The Miseducation of America’s Elites. He also writes the Shapiro’s Gavel newsletter on Substack.

The views expressed in this article are the writer’s own.