Cato Institute: The Court Went Too Far on Presidential Immunity

In Trump v. US, a majority of the Supreme Court has laid down an astonishingly broad view of presidential immunity from criminal prosecution over official actions, even those taken for heinous motives and with no show of justification. We should heed the warnings of dissenting Justice Sonia Sotomayor, joined by Elena Kagan and Ketanji Brown Jackson, who charge the majority with concocting an “atextual, ahistorical, and unjustifiable” array of immunities that will too often place above the law a president bent on criminal misuse of his powers of office. 

Nowhere in the Constitution is there mention of executive immunity, which was a topic of peculiar interest to the Founders and Framers. Alexander Hamilton wrote in Federalist 69 that unlike the “king of Great Britain,” the chief executive of the United States would “be liable to prosecution and punishment in the ordinary course of law,” and in Federalist 77 named “subsequent prosecution in the common course of law,” in addition to impeachment, as checks on “abuse of the executive authority.”

Notwithstanding this history, it was probably foreordained that the court would find some degree of presidential immunity. The US Justice Department under administrations of both parties has long taken for granted an immunity of some dimension or other, and the current Department, former President Trump’s adversary here, did not retreat from that view in this case. Although the court had never had to rule on criminal immunity, a 5–4 majority in the 1982 case of Nixon v. Fitzgerald had recognized an immunity from civil claims, such as for wrongful dismissal, over official presidential actions.

However, the Fitzgerald Court explicitly recognized that immunity from criminal prosecution would raise entirely different issues because the public welfare is far more deeply implicated when a president commits a crime than when he may happen to commit, say, a tort.

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