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The U.S. President Doesn’t Need Legal Immunity to Be Imperial

The U.S. President Doesn’t Need Legal Immunity to Be Imperial
Former President Donald Trump, seen in silhouette, arrives to speak at a campaign rally for the U.S. presidential election, in Waukesha, Wisc., May 1, 2024 (AP photo by Morry Gash).

Two weeks ago, the U.S. Supreme Court ruled in the case of Trump v. the United States, in the context of the ongoing criminal trial of former President Donald Trump for his efforts to overturn the results of the 2020 presidential election, including his role in inciting the Capitol insurrection on Jan. 6, 2021. In seeking to have that those charges dismissed, Trump’s legal team asked the court to determine the extent to which the U.S. president is immune from criminal prosecution for actions taken while in office. The majority opinion held that the president does indeed have wide-ranging immunity from criminal prosecution, but remanded the case to the lower court to apply the ruling to the specific charges against Trump.

The decision unsurprisingly spurred a range of reactions. On one extreme, some worried that it paved the way for ending democracy in the U.S., portraying the powers the ruling granted the president as dictatorial. Many legal experts asserted that the Supreme Court had ruled in error, that it “sidestepped” history and that the Constitution is clear in specifying that the president can be held criminally liable. To them, it appeared that the conservative wing of the court allowed partisan preference—namely support for Trump, the Republican presidential nominee—to take precedence over making an unbiased legal ruling.

On the other extreme were those who held that there was nothing alarming or unprecedented about the ruling. The president is already able to engage in a host of legally and ethically questionable acts without consequence. In the majority opinion written by Chief Justice John Roberts, the court ruled that while the president is immune when carrying out core functions specified under Article 2 of the Constitution, the president only has “presumptive immunity” for nearly all other functions. This means that the president could indeed be held criminally liable for some actions taken while in office. Stated differently, the court simply said that there are conditions under which the president is immune and that it will need to be determined in court if those conditions are met.

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