The implications of the US Supreme Court’s ruling on president immunity in Trump v. United States are broad and troubling, a panel of constitutional law experts agreed at an NYU Law Forum on July 9.
Moderator Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, opened the discussion by summarizing the ruling, which came in an appeal stemming from criminal charges brought against former president Donald Trump for his alleged role in the January 6, 2021 insurrection at the US Capitol. “By a vote of 6 to 3, the Supreme Court held that a former president has absolute immunity from criminal prosecutions for actions taken while in office that were within his or her core executive functions,” Goodman explained. “So, within core executive functions, that person enjoys absolute immunity and cannot be prosecuted for any of that conduct.
“The court also held that a former president is entitled to at least presumptive immunity from prosecution for all other official acts,…which can be rebutted by a particular test,” Goodman noted. “And then, thirdly, the court held that there’s no immunity for unofficial conduct or private acts while the former president served in office.”
He then asked the panelists—Mary McCord, a visiting professor at Georgetown University Law Center; Dean Emeritus Trevor Morrison, Eric M. and Laurie B. Roth Professor of Law; and Professor of Practice Andrew Weissman—to probe the implications of the Court’s decision. In an animated discussion, they generally agreed that the ruling departs from previous precedent and raises serious questions about the relationship between presidential and congressional power.
Watch video of the NYU Law Forum on the Supreme Court’s ruling on presidential immunity:
Selected quotations from panelists:
Trevor Morrison: [The opinion] used the kind of broad language that could be read to suggest a zone of exclusive presidential power under the Constitution that is far more broad than I think anyone plausibly thought. And whether that’s the right reading of the Court’s opinion or not will be fodder for future litigation. But to just editorialize…the Court didn’t need to come close to saying any of that to get where it evidently wanted to go. This opinion at every point sort of involves the invocation of a principle that, on its face, is not necessarily objectionable and then the exploration of that principle beyond the point of plausibility. It’s a reckless piece of judicial writing. [video 14:44]
Mary McCord: There is certainly enough wiggle room here that a corrupt president could certainly point to this majority opinion to do exactly what Justice Sotomayor posited in her [dissent], and that is, in his role as Commander in Chief, order the military to take a strike on a political opponent. [video 20:30]
Andrew Weissmann: I do think there’s a big open issue about, in connection with the criminal case of a [presidential] subordinate, whether the Court’s holding that you cannot use official actions of the president in a case involving the unofficial actions of the president, or official actions of the president—[whether] that will be something the Court extends to prosecutions of underlings. Because the argument will be that that [prosecution] is chilling and poses dangers to the functioning [of] the vital and…bold and vigorous presidency. [video 46:45]
Posted August 28, 2024