Trump’s Presidential Immunity Argument, Explained

Former President Donald Trump returns to the courtroom after a break during the second day of jury selection at Manhattan criminal court, Tuesday, April 16, 2024, in New York. Donald Trump returned to the courtroom Tuesday as a judge works to find a panel of jurors who will decide whether the former president is guilty of criminal charges alleging he falsified business records to cover up a sex scandal during the 2016 campaign. (Michael M. Santiago/Pool Photo via AP)

On numerous occasions, former President Donald Trump has proclaimed that he is above the law, even going so far as to remark during his 2016 campaign that he could “stand in the middle of Fifth Avenue and shoot somebody and…wouldn’t lose any voters.” Decades earlier, former President Richard Nixon — who ultimately resigned after being embroiled in the infamous Watergate scandal — told a reporter that “when the President does it, that means that it is not illegal.” 

Although Trump is not the first to invoke the concept of presidential immunity, he is the first to test the argument as a defense in a criminal case against a former president. Following an upcoming oral argument arising from Trump’s federal election subversion indictment, the U.S. Supreme Court will decide on the question of whether a former president enjoys absolute immunity from criminal prosecution for conduct while in office. 

The Supreme Court has previously ruled on presidential immunity in the context of civil lawsuits. However, given that no former president was ever prosecuted prior to Trump, the Court has never waded into whether such immunity shields a president from criminal liability. 

Below, we explain the history of the Supreme Court’s presidential immunity doctrine and how Trump is employing a sweeping claim of presidential immunity to argue that he cannot be prosecuted for allegedly attempting to overturn the results of the 2020 election.

What is presidential immunity and how has the Supreme Court applied it in past cases?

Presidential immunity is a legal doctrine that shields sitting and former presidents from legal accountability in certain cases. Although presidential immunity is not directly mentioned in the text of the U.S. Constitution, the doctrine has evolved throughout a series of court rulings over the last few decades. 

In past cases, the Supreme Court has applied presidential immunity to shield presidents from liability in civil lawsuits pertaining to their official conduct while in office, but has declined to extend the doctrine to unofficial, private conduct. 

In its 1982 decision in Nixon v. Fitzgerald, the Supreme Court held that former President Nixon was absolutely immune from private civil lawsuits concerning his official presidential responsibilities. The “official conduct” at issue in that particular case involved Nixon’s allegedly retaliatory firing of a U.S. Air Force employee, who asserted that he was wrongly dismissed for his whistleblowing testimony before Congress. The Court considered Nixon’s firing of an employee to be official conduct that falls within the “outer perimeter” — or broadest possible scope — of a president’s official actions. 

The Court in Fitzgerald premised the need for presidential immunity from civil liability on the basis that these suits could “distract” a president from performing his job. The threat of civil liability, the majority held, could have a chilling effect on a president’s decision-making abilities by “render[ing] [him] unduly cautious.” Nevertheless, the Court acknowledged that such immunity does not cover criminal cases, noting that there is “lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”

In its 1997 decision in Clinton v. Jones, the Supreme Court held that then-President Bill Clinton was not immune from a civil lawsuit concerning his private, unofficial acts. The underlying case involved allegations of sexual harassment against Clinton over actions taken prior to his presidency. The Court maintained that unlike civil cases pertaining to a president’s official acts, those concerning private acts would not distract the president from his duties or render him “unduly cautious.”

In a separate line of cases, the Supreme Court has consistently ruled that presidents are not absolutely shielded from complying with subpoenas issued in ongoing state or federal criminal cases.

What is Trump arguing in his presidential immunity appeal to the Supreme Court? 

In his appeal, Trump is arguing that all of the conduct alleged in the Washington D.C. election subversion case — which centers on his efforts to remain in power after losing the 2020 election — constituted “official” presidential acts for which he is absolutely immune from prosecution. 

In support of his absolute immunity claim — an assertion that was categorically rejected by two other courts — Trump proffers two main arguments: 

  1. The separation of powers doctrine shields him from criminal prosecution and
  2. The U.S. Constitution’s Impeachment Judgments Clause renders a president absolutely immune from criminal liability unless he is first convicted by the U.S. Senate following an impeachment proceeding. 

With regard to his separation of powers justification, Trump argues that courts cannot “sit in criminal judgment” over a president’s official actions even after he leaves office. The U.S. Court of Appeals for the D.C. Circuit previously rejected this argument, ruling in a unanimous February 2024 opinion that Trump does not have the authority to “defy federal criminal law” and he is therefore “answerable in court for his conduct.” 

The D.C. Circuit further concluded that in contrast to civil lawsuits concerning a president’s official acts, the public interest in holding a president criminally accountable “outweighs the potential risks of chilling Presidential action.”

Trump’s other main argument in support of his absolute immunity defense hinges on his reading of the Impeachment Judgments Clause, under which he argues that a president may only be subject to criminal prosecution if he is first impeached by the U.S. House and subsequently convicted by the U.S. Senate. In turn, Trump also contends that a president who is acquitted by the U.S. Senate cannot be later indicted for similar conduct.

The D.C. Circuit rebuffed what it deemed as Trump’s “tortured” and ahistorical reading of the Impeachment Judgments Clause, explaining that the clause’s inclusion of the word “convicted” doesn’t “implicitly bestow[] immunity on Presidents who are not convicted.” The court also underscored the fact that while the Framers carved out immunity for certain elected officials in other areas of the Constitution, such as the Speech and Debate Clause, “they chose not to include a similar provision granting immunity to the President.”

What could happen after the Supreme Court’s ruling on Trump’s immunity appeal?

In addition to directly impacting Trump’s federal election subversion case brought by special counsel Jack Smith, the Supreme Court’s eventual ruling on presidential immunity could also affect the other ongoing criminal suits against the former president — especially those in Florida and Georgia that have not yet gone to trial. Trump’s appeal has already delayed and temporarily halted proceedings in the election subversion case, which was originally scheduled to go to trial on March 4, 2024. 

If the Court fully affirms the D.C. Circuit’s ruling that Trump is not absolutely immune from criminal prosecution, the case will go back down to the district court and proceed to trial. Conversely, the Court could hold that Trump is absolutely or partially immune from criminal liability for his in-office acts. However, even if the Court rules that Trump is immune for certain “official acts” outlined in his indictment, a trial could still take place regarding Trump’s allegedly unofficial, private conduct involving his attempts to overturn the 2020 election.