The 2024 Supreme Court case Trump v. United States marked the first time in the history of the United States a former president has been criminally prosecuted for actions committed during his presidency. At the time former President Donald J. Trump was facing an indictment over his alleged actions around the conspiracy to overturn the 2020 Presidential election. He was accused of, inter alia, spreading false claims of election fraud and obstructing the counting and certification of the election results. Instead of denying the accusations, however, Trump’s legal team opted to go for gold, and argued for absolute immunity regarding all of his alleged conduct.
In a surprising turn of events, the Supreme Court concurred. Drawing from sources such as the Federalist Papers and earlier precedent on presidential immunity, the Supreme Court, in a 6–3 fashion, decided to extend the scope of presidential immunity to dimensions never seen before. Whereas before the president would only be immune to civil lawsuits, the Trump decision expanded the presidential immunity to also cover criminal prosecutions. But how did we get here, and what consequences can a decision like this have? To answer these questions, we need to rewind time a bit.
In January of 1970, a man named Arthur Ernest Fitzgerald was fired from his job as a management analyst for the United States Air Force as a result of departmental reorganization. He then proceeded to sue the United States government for damages, alleging that his dismissal was an act of retaliation, and that it only happened due to an unfavourable testimony he gave about a particular airplane design. The case eventually made its way up to the Supreme Court.
Therefore, in the 1982 decision Nixon v. Fitzgerald, the Supreme Court had to assess whether a former president could be held civilly liable for actions taken while in office. Five out of the nine Justices thought the opposite, and the Court’s holding was that the president is entitled to absolute immunity in civil cases, when the damages are a result of an official act. The Court’s reasoning was that exposing presidents to the possibility of civil litigation would hinder their ability to make decisions and perform their duties as the chief executive.
The argument seems sensible. However, the Court emphasized the distinction between civil lawsuits and criminal cases, noting that criminal prosecutions are inherently different and have other safeguards in place, such as prosecutorial discretion and higher burden of proof. In regard to limiting the president’s power, the Court’s view was that accountability would be achieved through democratic and political means, by having fair elections and impeaching potentially corrupt politicians.
That brings us back to 2024. To summarise the contents of Trump v. United States, the Court effectively divides all actions the President could conceivably take into core constitutional acts, official acts and unofficial acts. The Court then assigns immunity based on the authority of the President to conduct certain type of act – core and official acts have either conclusive or presumptive immunity, while unofficial acts receive none at all. However, the Court does little to give concrete guidance on how this division of acts ought to happen. This leads to frightening possibilities where the president engages in illegal acts under the guise of core acts or official conduct, but the actions cannot be properly investigated because the president is either fully or presumptively immune.
President Trump himself was indicted for conspiring to overturn the results of the 2020 Presidential election – who is to say it will not be attempted again in order to affect the results of the 2026 midterm elections, but this time under a shiny shield of immunity? It is evident that he has no moral qualms about pushing the boundaries of legal theories, having posted statements such as “He who saves his Country does not violate any Law” on social media platforms. Moreover, the safeguards of having fair elections that were assumed in Nixon v. Fitzgerald are brought into question, when the president himself faced indictments attempting to bypass said safeguards.
Additionally, what the case does not address, is the general public interest in seeing those who commit criminal acts prosecuted. Rule of law applying equally to everyone is one of the core democratic principles. Trump v. United States effectively raises the president above the law, when nobody should have that level of authority. Because of this, and the fact that the nation was formed as a response to having a king, the decision of the Court is highly antithetical to the founding principles of the nation.
There is no telling where this decision will take the country. It continues the trend of consolidating more and more power to the executive branch. It opens the door for bad actors to abuse the powers of presidency for personal gain. And above all, it raises the president above the law, effectively bestowing powers of a sovereign king to the president. The ending remarks of Justice Sotomayor’s dissenting opinion are in fact quite telling:
“With fear for our democracy, I dissent.”
Team Trump & Bruen