Article II, Section 2, Clause 2:

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

In Trump v. United States, the Supreme Court addressed how principles of presidential immunity apply to a criminal prosecution of a former president1 for actions taken while in office.2 The case concerned an indictment against former President Trump for allegedly attempting to overturn the results of the 2020 election.3 In evaluating President Trump’s claim that he was immune from prosecution, the Supreme Court announced a three-part framework for evaluating a former president’s immunity from criminal prosecution.

First, the Court held that former presidents are entitled are entitled to absolute immunity from criminal prosecution for actions within the “exclusive sphere” of their constitutional authority while in office.4 Certain core presidential powers, such as granting pardons and removing executive officers whom the president has appointed, are “exclusive and preclusive” —meaning that the other branches of government have no constitutional power to restrict them, the Court explained.5 President Trump acted in this exclusive sphere of authority, the Court held, when he allegedly encouraged officials in the Department of Justice to “replace their legitimate electors with Trump’s fraudulent slate of electors[,]” 6 and the former President enjoys absolute immunity from criminal prosecution based on those allegations.7

The second facet of the framework addresses conduct that falls outside of the exclusive sphere of presidential power but still constitutes an official act by the President.8 Although not protected by absolute immunity, such official acts may still be protected by immunity, the Court reasoned, in order to safeguard the independence and effectiveness of the presidency and to enable presidents to perform their constitutional responsibilities without being overly cautious or concerned with future prosecutions.9 Official acts are presumptively immune from criminal prosecution, the Supreme Court held, unless the government can show that prosecuting a former President in that instance “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” 10 The Court held that President Trump’s official acts included his alleged attempt to pressure the former Vice President to take certain acts in connection with certifying the electoral vote count, and the Court remanded for lower courts to determine whether the United States could rebut the presumption that immunity applied to those acts.11

Finally, the Supreme Court held that former presidents do not have immunity for their unofficial acts.12 The Court observed that the process of “[d]istinguishing the President’s official acts from his unofficial can be difficult[,]” 13 especially in the context of the former President’s public communications on social media and in a public speech.14 Because the official acts analysis requires a fact-specific evaluation that lower courts did not conduct, the Supreme Court remanded the case for further consideration on whether certain activity qualifies as official or unofficial.15

Although the Supreme Court left questions of immunity unresolved in Trump v. United States, it did definitively address President Trump’s argument that a former President can only be prosecuted after being impeached in the House and convicted in the Senate.16 The Supreme Court rejected the view that impeachment is a perquisite to a criminal conviction, reasoning that transforming the political process of impeachment into an essential first step in a criminal prosecution did not have support in the Constitution’s text or the structure of the United States government.17

Footnotes

1

Because criminal charges have never been filed against a sitting President, the Supreme Court has never considered a case addressing whether a sitting President could be prosecuted. The executive branch has expressed the view sitting Presidents enjoy absolute immunity from criminal prosecution. See Memorandum from Randolph D. Moss, Assistant Atty. Gen., Office of Legal Counsel, to the Atty. Gen.: A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. OLC 222, 222 (Oct. 16, 2000) ( “[T]he indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” ).

2

Trump v. United States, No. 23-939, slip op. at 1 (U.S. July 1, 2024).

3

A federal grand jury indicted President Trump on four criminal counts: (1) conspiracy to defraud the United States by overturning the election results under (18 United States Code, section 371), (2) conspiracy to obstruct an official proceeding— in this case, Congress’s certification of the electoral vote (18 United States Code, section 1512(k)); (3) obstruction of, and attempt to obstruct, the certification of the electoral vote (18 United States Code, section 1512(c)(2)); and (4) conspiracy against the rights of persons to vote and to have their votes counted (18 United States Code, section 241). In Fischer v. United States—a different case arising out of the January 6, 2021 unrest at the U.S. Capitol issued during the same term as the Trump decision—the Supreme Court interpreted the statute on which the third count is based, 18 United States Code, section 1512(c)(2). No. 23-5572., slip op. at 1 (U.S. June 28, 2024). In Fischer, the Court held that charges under § 1512(c)(2) must be based on alleged impairment (or attempted impairment) of records, documents, objects, or “other things” used an official proceeding. Id. at 16. For a more detailed discussion of the charges in the Trump indictment, see Peter G. Berris, Cong. Rsch. Serv. LSB1116, Overview of the Indictment of Former President Trump Related to the 2020 Election, https://crsreports.congress.gov/product/pdf/LSB/LSB11016.

4

Trump v. United States, No. 23-939, slip op. at 9.

5

Id. at 7-8 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 638 (1952) (Jackson, J., concurring)).

6

Id. at 19.

7

Id. at 21.

8

See id. at 9.

9

Id. at 12-15.

10

Id. at 14 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982)).

11

Id. at 23-24.

12

Id. at 15.

13

Id. at 17.

14

Id. at 28-30.

15

Id. at 28.

16

Id. at 32-34.

17

Id. at 34.