Is the President Now Above the Law?

SCOTUS ruled the president has near-absolute immunity.

On July 1st, 2024, the Supreme Court ruled that the president is immune from criminal prosecution for official actions. While this may seem to make sense or be innocuous on the surface, detractors have said the ruling is vague and allows presidents to operate above the law.

Justice Sotomayor said that a president could order Seal Team 6 to assassinate a political rival or use the military to stage a coup without consequences. In her dissent, she said “The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.”

Justice Jackson added that it is now possible for the president to poison the Attorney General. She explained that if an action is deemed official, then the president might be “exempt from legal liability for murder, assault, theft, fraud, or any other reprehensible and outlawed criminal action.”

Are Sotomayor and Jackson correct? Does this SCOTUS decision protect the president to the point that he is above the law?

Quite possibly, but it’s complicated.

Trump v. United States

On April 25th, 2024, the Supreme Court heard arguments in Trump v. United States. This case is an extension of another in the D.C. District Court, in which former President Donald Trump faced 4 charges for his actions leading up to and during the events of January 6th, 2021.

1. Conspiracy to defraud the US: under 18 U.S.C. § 371, it is a crime to work with others to, according to Hammerschmidt v. United States, “cheat the government out of property or money, or to interfere with or obstruct one of its lawful governmental functions by deceit, craft, or trickery, or at least by means that are dishonest.” Trump and his coconspirators are accused of formulating a plan and spreading lies to obstruct an official meeting.
2. Obstructing an official proceeding: under 18 U.S.C. § 1512(c)(2), it is a crime to obstruct, influence, or impede an official proceeding. Trump and his alleged coconspirators are accused of inciting others to storm the Capitol building to stop the official certification of electoral votes.
3. Conspiracy to obstruct an official proceeding: though Trump never entered the Capitol building on January 6th, he is accused of working with others in the days leading up to the event to orchestrate it.
4. Conspiracy Against Rights: under 18 U.S. Code § 241, two or more people cannot conspire to hinder any person from the free exercise or enjoyment of rights afforded by the Constitution or other laws. Prosecutors claim Trump and other conspirators attempted to stop the certification of votes, thus depriving citizens of their right to vote.

Trump’s response to these charges was to claim presidential immunity. This echoed Nixon’s famous comment to journalist David Frost: “Well, when the president does it … that means that it is not illegal.” Nixon was implicated in the Watergate scandal and eventually resigned from the presidency in 1974.

The DC court rejected this argument on February 2nd, 2024. “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.” The DC tribunal unanimously reasoned that presidential power must be limited.

They justified this position with the help of Hamilton, Madison, and Jay, authors of The Federalist Papers.

This Is Why Trump Is Guilty of 34 Felonies

The Federalist Papers

The Federalist Papers were written in 1787 and 1788 by Alexander Hamilton, James Madison, and John Jay. They wrote these 85 essays to explain—and push state representatives to ratify—the new US Constitution. Its acceptance and the future of the country were uncertain. Among many issues, state representatives and their constituents feared a president with unchecked power. Having broken away from the English monarchy a little over a decade before, no one wanted a repeat. Hamilton and Madison wrote a handful of essays assuaging these fears. With their help, the Constitution was ratified on June 21, 1788.

Since then, The Federalist Papers have been a useful tool for interpreting the Constitution. The DC justices quoted them extensively in their decision.

Federalist 51

This essay explains why the system of checks and balances put in place by the Constitution would limit the executive branch’s power. In particular, Madison said a “dependence on the people is, no doubt, the primary control on the government.” Justice Scalia expanded on this in Morrison v. Olson when he said the founders created a “Chief Executive accountable to the people” so that blame could “be assigned to someone who can be punished.”

The DC justices claimed this demonstrates that presidents do not and cannot have unlimited immunity. It is one of the country’s fundamental principles that the president is liable to some extent for his actions. Trump’s actions, according to the DC justices, attempted to limit the power of the people over the presidency through an election. His actions also limited the power of Congress over the presidency to count votes and certify an election. Therefore, they reasoned that Trump was guilty of all 4 charges listed above.

Federalist 65

Written by Hamilton, this essay explains the powers and importance of the Senate. It focuses mainly on the Senate’s power to control the president by trying and removing him after the House has impeached him. One open question was whether the Senate could impose punishment on presidents or other officers once they have been removed from office. It was possible to do so in the British system, in that impeached and removed officers could face fines, imprisonment, or other criminal penalties. The founders withheld this power from the Senate. This raised fears and hindered the Constitution’s ratification, as some were concerned that powerful and unscrupulous politicians may not be held adequately accountable. Could they still be punished after leaving office for crimes committed in office? Hamilton soothed these concerns by stating that they would “still be liable to prosecution and punishment in the ordinary course of law.”

The DC justices reasoned this makes it abundantly clear politicians are still held to the law of the land. How, then, could Trump claim he is immune from actions taken while in office? The justices solidified their argument by quoting Tench Coxe, the Pennsylvanian delegate to the Continental Congress. He said, the punishment of dangerous officers “remains within the province of the courts of law to be conducted under all the ordinary forms and precautions.”

Federalist 66

The purpose of this essay was to refute arguments against the Senate’s ability to try impeachment cases. After being impeached by Congress, it’s the Senate’s responsibility to further investigate and serve as the judge and jury. For those who opposed ratifying the Constitution, it was thought that the Senate’s ability to do so would infringe on the powers of the judicial branch, possibly creating an overpowered aristocracy. Hamilton claimed that to properly maintain checks and balances between the 3 branches it was necessary to have an “intermixture of those departments for special purposes.” Therefore, Senate impeachment trials are not the only avenue to hold a president accountable. The judiciary branch could still prosecute, regardless of what the Senate does.

In the DC trial, Trump’s lawyers made the argument that presidents are immune from the law because it is solely the Senate’s responsibility to hold them accountable. The DC judges rejected this argument, stating that impeachment trials are “intended to hold officials politically accountable, while leaving criminal accountability to the Judicial Branch.” They believed that Senate trials are likely to be marred with political bias. The judges point to literally every impeachment trial in which presidents were acquitted by their party members in the Senate. They further back up their position with a 1798 quote from Congressional Representative Dana: “The process in cases of impeachment, in this country, is distinct from either civil or criminal — it is a political process.”

Federalist 69

To soothe concerns about the president becoming another king, Hamilton wrote this essay to explain the differences. In this essay, he claimed that the president would have essentially the same responsibilities as a king but on a substantially reduced level. Most importantly for this discussion, Hamilton said that a president would “stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.” Hamilton was saying a president would not be “sacred and inviolable” like a king.

In the DC trial, Trump’s lawyers pointed to one sentence from Federalist 69 to prove his immunity: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The key word here is “afterwards.” His lawyers said that the president would be punishable under the law after he was impeached and removed from office. Because Trump was never removed from office, he was not open to prosecution and punishment.

However, the DC judges refuted this argument. They said being prosecutable and punishable is not dependent on being impeached and removed. Rather, Hamilton was simply explaining that a president would be subject to the law for the crimes for which he was impeached and removed, in that it is the logical order of events. The DC judges said, “It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.”

Nixon v. Fitzgerald

The power of the executive has long been the cause of fiery debate. And the definition of presidential immunity has slowly expanded, especially in the last few decades. The largest expansion of presidential immunity, at least before the 2024 SCOTUS ruling in Trump v. United States, happened in the 1982 ruling in Nixon v. Fitzgerald.

Toward the end of President Lyndon B. Johnson’s term in office in 1968, Fitzgerald, an analyst with the Air Force, testified in front of Congress about excessive costs relating to the development of a new aircraft. In 1970, under President Richard Nixon, Fitzgerald was fired during departmental reorganization. Fitzgerald claimed this was retaliation for his testimony. He then filed lawsuits against Department of Defense officials and White House staff members. With presidential immunity in question, the case went to the Supreme Court in 1981.

The key piece of evidence for this claim was the Butterfield memorandum. Alexander Butterfield, a former White House, sent a memo to Haldeman, Nixon’s Chief of Staff, saying that “Fitzgerald is no doubt a top-notch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game.” He followed this with the recommendation that “We should let him bleed, for a while at least.” However, he was never reinstated.

The court ruled the president “has absolute immunity from liability for civil damages arising from any official action taken while in office.” Their reasoning was that the president needs to be able to perform his job unencumbered. If he were open to civil suits, then every official action, even if on the outer perimeter of his duties, that resulted in civil damages could land him in court. He’d be unable to function.

A King Above the Law

“In every use of official power, the President is now a king above the law.” –Justice Sotomayor

In the 2024 SCOTUS ruling in Trump v. United States, the court reaffirmed the previous ruling in Nixon v. Fitzgerald but expanded presidential immunity to criminal liability for most actions. They created 3 categories of presidential actions:

1. Core Actions: as stated in Article II of the Constitution, the president is the Commander-in-Chief of the armed forces, can appoint and remove officers of the executive branch, veto or approve bills, etc. For such actions, the court ruled that the president has absolute immunity in both civil and criminal arenas. Anything he does to fulfill these responsibilities is above the law.
2. Outer Perimeter Actions: Using Nixon v. Fitzgerald, the court acknowledged that a president’s duties extend beyond the enumerated core actions. They provided little explanation, only that these are actions “not manifestly or palpably beyond [his] authority.”
3. Non-official Actions: Again, these are not explained. It is presumed that they are actions that can clearly be shown to not fulfill any duties of the office.

There’s a glaring problem. If the president has absolute immunity for his core actions, then he could do anything he wants with the military, for example. He could deploy it on US soil. He could use Seal Team 6 to assassinate someone. SCOTUS made it clear that, as Commander-in-Chief, he cannot be prosecuted for using the armed forces in any imaginable way. Also, as head of the executive branch, he can remove department executives however he wants. Any type of removal is permissible, and the president is immune. Poisoning the Attorney General is technically removing him from his position. The court made it clear that the core actions of the presidency are unquestionably protected.

Another problem is that there is no clear line between outer perimeter actions and non-official actions. Who or what determines the difference? The courts can’t. The court’s opinion is that “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” The president could conceivably declare an action official and then it just becomes so. Anything the president does can be considered an official action. “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”

Murder? Immune. Arson? Immune. Fraud? Immune. Inciting a riot? Immune. Trying to prevent the certification of an election? Immune. If he says it’s an official action, he’s immune. If it’s part of his core duties, he’s absolutely immune.

So it looks like dissenting justices Sotomayor and Jackson have a point. Their language is a bit hyperbolic, though. A president will almost certainly not use the military to assassinate a political rival or remove the Attorney General by poisoning him. But if he did, this ruling allows him to get away with it.