Presumptive Immunity in an Age of Legal Turmoil

Alexander Hamilton argued that a “feeble Executive implies a feeble execution of the government.” Hamilton’s radical conception of a strong executive pales in comparison to the strength of the modern American president. Through a series of cases, the Supreme Court has incrementally bestowed greater authority upon the executive branch. Trump v United States is not necessarily a departure from the Court’s trajectory of expanding immunity even though it exceeds the limits of prior Court precedent. This case crucially extends immunity from criminal prosecution to the President on all official acts, not solely acts that are explicitly described in the Constitution. Precedent cases do not mention the doctrine of presumptive immunity. Presumptive immunity halts prosecutors from pursuing charges against a President unless a criminal injunction against a specific action would not impose on the President’s crucial duties. The Trump v United States decision grants absolute immunity, or a ban against pursuing prosecution for the President’s actions, from criminal litigation for acts within the President’s constitutionally prescribed duties. It also allows the President to take on additional “official” duties and then claim presumptive immunity from prosecution for these acts. In creating a new doctrine of presumptive immunity, the Court’s decision in Trump v United States did not create a high enough standard of immunity for criminal cases when one examines the case through the lens of criminal and civil penalties.

Trump v United States covers a widely varying area of law compared to past precedent. Both Nixon v Fitzgerald and Trump v United States involve immunity from legal action that the executive maintains as cases arise against him or her in office. Yet Nixon v Fitzgerald was based on the enactment of a civil lawsuit against a sitting President, which is quite a different circumstance from the one that led to the court proceedings in Trump v United States. Additionally, Nixon v Fitzgerald underscored the necessity of smooth functioning for the executive branch. The Court held that since absolute immunity “is a functionally mandated incident of his [the President’s] unique office,” the judicial branch cannot take up civil action against a President to dispute the legality of official decisions. Nixon v Fitzgerald also affirmed that absolute immunity “extends to all acts within the ‘outer perimeter’ of his [the President’s] duties of office”. This “outer perimeter” refers to presidential acts that are not necessarily listed in the Constitution but arise as a result of those core capacities and are still crucial to the President’s ability to govern the nation. While some, including the majority in the Trump v United States decision, argue that the next logical step for the expansion of precedent occurs through extending some form of immunity to criminal prosecution, the expansion does not arise quite so naturally. Nixon v Fitzgerald reduced the power of the legal system as a method for checking the President’s actions as they relate to civil law, but criminal law is another story.

A crucial difference between Nixon v Fitzgerald and Trump v United States is the emphasis that the Court places on actions that occur within the wider realm of a President’s duties. Through these decisions, the Court advocates for different solutions to issues that arise over constitutionally-adjacent, or “outer ring” duties. Trump v United States extends only presumptive immunity for criminal prosecution to actions in the “outer ring” of duties. A President’s actions can be contested through criminal court proceedings if the proceedings do not become burdensome to the duties of the President. Still, the executive is generally presumed to be immune from most prosecution. By underscoring the distinction between explicit constitutional actions and those that reside in the “outer ring” of duties, the Court places greater emphasis on protecting actions explicitly dictated by the Constitution than on those that arise in the “outer ring” of presidential duties. Yet the limitations do not go far enough to curb the alleged malfeasance of a President who might have violated criminal law. Presumptive immunity is too high a standard of protection for actions that would typically be prosecuted in the criminal court system if done by any other American. John Locke eloquently articulated this idea in his Second Treatise of Government by asserting that “[n]o man in civil society can be exempted from the laws of it.” According to Locke, even the leader of a society must be subjected to the consequences of the social contract’s rules. While the Court’s distinction between the President’s constitutional and assumed presidential duties is key, presumptive immunity yields the President too much immunity in situations where the American people may be threatened.

Unlike the civil lawsuit that concerned the Court in Nixon v Fitzgerald, criminal law and subsequent penalties or acquittals often imply much greater consequences for not only the defendant and plaintiff but also for the entire country when the President is involved. Granted, the consequences of a tumultuous criminal trial involving the President can envelop the nation in great upheaval and render the country incapable of properly functioning, regardless of whether or not the President is found guilty. Yet the high stakes of criminal law must be seriously considered since a guilty judgment can have much greater consequences than in a civil matter. While civil cases simply require “a preponderance of the evidence,” criminal prosecution requires evidence “beyond a reasonable doubt” in order to prove a guilty verdict. As a consequence of the high bar for finding guilty judgments, the court system necessarily must handle criminal cases with caution under the assumption that their results have the utmost level of importance. The high standards involved in implicating a person who has been criminally prosecuted highlight the greater importance that the legal system places on achieving fact-based decisions in criminal cases due to the crucial matters they concern and their sometimes life-altering consequences. These high stakes make the shield of protection on the defendant in criminal cases, even if it is the President of the United States of America, necessarily weaker. All defendants must be called to the stand so that criminal matters can be resolved. Due to the importance of criminal prosecution, the Court’s newly-created level of presumptive immunity insufficiently holds the President accountable to the legal system and its consequences.

The doctrine of presumptive immunity does not render enough ability for the President’s actions within his or her “outer perimeter” of duties to be challenged. Since no American is exempt from the law, especially criminal law and its enormous consequences, the doctrine of presumptive immunity gives too much power to the President to evade the law by acquiring powers that completely ignore the Constitution under the guise that these powers fall within the “outer perimeter” of executive power. Presumptive immunity for actions within the “outer perimeter” of a President’s official duties gives the executive too much insulation from necessary legal proceedings and their crucial consequences.

The doctrine of presumptive immunity contrasts with past cases concerning executive authority like Clinton v. Jones and Nixon v. Fitzgerald. While Clinton v. Jones affirmed that all citizens, including the President, must be subject to the law, especially in gray areas, Nixon v. Fitzgerald ensured that civil lawsuits could not obstruct the President’s crucial duties. However, the Court’s low standard of presumptive immunity established in Trump v. United States grants the President excessive protection when his or her actions are not a main power of the President and violate criminal laws. When the President receives an exemption from consequences, there is no limit to his or her ability to create new duties that supposedly fall within the executive’s official functions. This may allow the strength of the executive branch to grow exponentially.

Despite the varying levels of immunity that arise from the Trump v United States decision, the courts are just one method of halting presidential decisions. The checks and balances created by the Constitution remain, enabling the other branches of government to stop presidential actions from going into effect. The judicial branch retains the ability to declare acts of the President, such as executive orders, unconstitutional and overturn them. Additionally, the legislative branch can threaten the President with impeachment if he or she acts inappropriately. Trump v United States dangerously expands executive power by making it possible for the President to act unlawfully and claim that the doctrine of presumptive immunity applies after the fact. This new standard may allow the President to take control of numerous fields of national governance and therefore violate the separation of powers fundamental to the American Federal System.

Edited by Kayla Nia