The US Supreme Court has never considered whether former presidents are immune from criminal prosecution for acts they took in office. Before
The justices are scheduled to hear arguments Thursday in a historic showdown likely to determine whether Trump stands trial in federal court in Washington for allegedly inciting the Jan. 6 Capitol riot and trying to overturn the 2020 election. Trump, fighting charges pressed by Special Counsel <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd09840000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Jack Smith-bsp-person>, contends the Constitution gives presidents “absolute immunity” from prosecution over official actions taken while in office.
Donald Trump
Photographer: Curtis Means/Getty Images
Two lower courts ruled against Trump, saying he was seeking something that couldn’t be found in the Constitution, the words of the nation’s founders or any Supreme Court precedent.
“In this moment, there is no such thing as criminal immunity for presidents,” said <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd09bb0000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Kimberly Wehle-bsp-person>, a University of Baltimore law professor whose focuses include the constitutional separation of powers.
Here are some of the issues swirling around the case.
What will be the impact on Trump’s criminal cases?
Trump, the presumptive 2024 Republican presidential nominee, is pressing a sweeping argument that would mean dismissal of the case against him in Washington. The justices could also adopt a narrower version of presidential immunity, potentially kicking the case back to the lower courts to determine whether any of the allegations involve official actions warranting a legal shield.
The timing of the Supreme Court’s ruling may be as important as its substance.
The case is one of four prosecutions hanging over Trump, including one already proceeding in New York state court <-bsp-bb-link state="{"bbDocId":"SBZLMRDWLU68","_id":"0000018f-11cd-d583-afbf-d3dd09be0001","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">over hush-money payments-bsp-bb-link> to a p*rn star. Trump has also claimed presidential immunity in those cases even though many of the allegations involve alleged conduct when he was a private citizen.
The justices are scheduled to hear arguments Thursday in a historic showdown likely to determine whether Trump stands trial in federal court in Washington for allegedly inciting the Jan. 6 Capitol riot and trying to overturn the 2020 election.
Photographer: Julia Nikhinson/Bloomberg
What does the Constitution say?
When it comes to presidential immunity, the Constitution doesn’t say anything expressly. As conservative Supreme Court Justice
Trump points to two provisions he says implicitly confer immunity from criminal prosecution. The first is the clause that vests the “executive Power” in the president. Trump says that clause, coupled with broader principles of constitutional separation of powers, mean that federal judges can’t sit in judgment over a president’s official acts.
Smith says the provision implies no such thing, saying that for more than two centuries federal courts have ensured that presidents comply with laws enacted by Congress.
Trump also cites the Constitution’s impeachment judgment clause, which says that a president can be prosecuted after being impeached and convicted. Trump argues that, since he was acquitted in the Senate after the House impeached him for inciting the Jan. 6 Capitol attack, he can’t be prosecuted.
Smith says Trump’s reading turns the impeachment judgment clause upside down. The provision, he says, is designed to ensure a president can be prosecuted after a Senate conviction and doesn’t suggest a president can’t be prosecuted in other circ*mstances.
Richard Nixon
Photographer: Getty Images/Bettmann
What historical parallels are there?
Trump is the first former US president to be indicted, so there are no exact parallels. But two other presidents faced the serious prospect of criminal charges over the past 50 years.
The first was <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a2f0000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Richard Nixon-bsp-person>, who resigned in disgrace in 1974 after the Watergate scandal. A month later, President <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a300000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Gerald Ford-bsp-person> pardoned Nixon, saying the ex-president “has become liable to possible indictment and trial for offenses against the United States.” Nixon accepted the pardon the same day.
The second was <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a340000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Bill Clinton-bsp-person>. As he was leaving office in 2001, Clinton reached a deal with independent counsel Robert Ray to head off a possible indictment for giving false testimony about his sexual relationship with White House intern <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a340001","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Monica Lewinsky-bsp-person>.
What are the key legal precedents?
Perhaps the most important precedent is the Supreme Court’s 1982 Nixon v. Fitzgerald ruling, which said former presidents have complete immunity from civil lawsuits for actions taken within the “outer perimeter” of their official duties. Trump is urging the court to extend the Fitzgerald ruling to protect a president from criminal charges as well.
Other important cases include:
- Marbury v. Madison (1803). Though it’s best known for establishing the power of the Supreme Court to strike down federal laws as unconstitutional, Trump argues that Marbury also provides criminal immunity because it says a president’s official acts “can never be examinable by the courts.” A federal appeals court rejected that argument, saying Chief Justice <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a370000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">John Marshall-bsp-person> was referring to issues that the Constitution puts within the president’s discretion.
- Trump v. Vance (2020). In a 7-2 defeat for Trump, the court ruled that even a sitting president isn’t categorically immune from a state criminal subpoena. The ruling paved the way for a New York grand jury to see Trump’s financial records.
- US v. Nixon (1974). In a precursor to the Vance ruling, the court unanimously ruled that sitting presidents don’t have a total shield from federal criminal process — in that case, a subpoena for secret White House recordings. The ruling led to President Nixon’s resignation after the tapes were released publicly.
- Clinton v. Jones (1997). In another unanimous decision, the Supreme Court ruled that President Clinton had to defend against a civil lawsuit alleging sexual harassment rather than postpone the case until he left office.
Do the leaders of other countries have immunity?
In a number of <-bsp-bb-link state="{"bbDocId":"RZ0T92DWRGG0","_id":"0000018f-11cd-d583-afbf-d3dd0a3f0000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">countries-bsp-bb-link>, presidents, prime ministers or chancellors are shielded from liability when performing their governmental duties but can be tried for crimes related to other actions. In France, presidents can’t be sued or prosecuted in a criminal case until after leaving office. That happened to former Presidents <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a3f0001","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Jacques Chirac-bsp-person> and <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a3f0002","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Nicolas Sarkozy-bsp-person>, mainly for actions that occurred before or after their terms.
In Italy, a government minister including the prime minister can be prosecuted for crimes committed in office only if Parliament approves. Likewise, the German Parliament can lift immunity at the request of prosecutors for legislators, the president or the chancellor (who has immunity only if he or she is a member of Parliament).
Nigeria, Ghana and Kenya protect their presidents against prosecution for criminal and civil offenses only while still in office. In South Korea, a sitting president has immunity unless impeached by Parliament; that’s how <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a400000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Park Geun-hye-bsp-person> became that nation’s first top leader removed from office, convicted of corruption charges and later pardoned.
The Reference Shelf
- Keep up with Trump’s trials using Bloomberg’s tracker.
- Related QuickTakes on the <-bsp-bb-link state="{"bbDocId":"SBZLMRDWLU68","_id":"0000018f-11cd-d583-afbf-d3dd0a420000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">hush money case-bsp-bb-link> against Trump and how his criminal cases <-bsp-bb-link state="{"bbDocId":"SBHIM5DWX2PS","_id":"0000018f-11cd-d583-afbf-d3dd0a430000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">test the US Constitution-bsp-bb-link>.
- Bloomberg Opinion’s
Noah Feldman explores the <-bsp-bb-link state="{"bbDocId":"S9MPJOT0G1KW","_id":"0000018f-11cd-d583-afbf-d3dd0a460000","_type":"0000016b-944a-dc2b-ab6b-d57ba1cc0000"}">immunity arguments-bsp-bb-link>.
--With assistance from <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Gaspard Sebag-bsp-person>, <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0001","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Donato Paolo Mancini-bsp-person>, <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0002","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Karin Matussek-bsp-person>, <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0003","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Moses Mozart Dzawu-bsp-person>, <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0004","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Anthony Osae-Brown-bsp-person>, <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0005","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Helen Nyambura-bsp-person> and <-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a4e0006","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Katarina Höije-bsp-person>.
To contact the reporter on this story:
To contact the editors responsible for this story:
<-bsp-person state="{"_id":"0000018f-11cd-d583-afbf-d3dd0a540000","_type":"00000160-6f41-dae1-adf0-6ff519590003"}">Joel Weber-bsp-person> at jweber66@bloomberg.net
Lisa Beyer, Elizabeth Wasserman
© 2024 Bloomberg L.P. All rights reserved. Used with permission.
