Aziz Huq Analyzes the Supreme Court’s Immunity Ruling in Trump v. US
Presidential Criminal Immunity: A Rule-of-Law Threat Beyond the Oval Office
In Trump v. United States, a six-justice majority of the Supreme Court created a pair of new presidential immunities from criminal prosecution, supplemented with additional broad new evidentiary barriers. These newly minted immunities, which directly inhibit criminal indictment or conviction of the president, are also likely to cast a shadow on the prosecution of subordinate officials, not least as a consequence of new evidentiary rules of uncertain breadth. The Court’s majority, in an opinion written by Chief Justice John Roberts, justified the decision’s breadth by appealing to the consequences of immunity or its lack. Strikingly absent from the opinion were the kinds of textual and originalist materials with which the Roberts Court is often associated. (That the leading originalist work on immunity is at odds with the Court’s conclusion perhaps explains this lacuna. If nothing else, the immunity decision is a reminder that the conservative justices are fair-weather originalists.)
But do the consequentialist foundations of the immunity decision stand up to scrutiny on their own terms? To date, attention has focused on the specific, and narrower, question of whether subordinate officials can still be prosecuted. But the question of subordinate exposure to criminal liability does not fully capture the implications of the scope of the immunity decision—or at least so I have argued in a forthcoming article. Both the costs and the benefits of exorbitant presidential immunity of the kind created by the Supreme Court are more complex than that.
It is therefore worth stepping back and reflecting on the many complex ways in which such immunity radiates through the executive branch as a whole, seeping into the legislature and the general public. Viewed in the wider institutional contexts of the executive branch at large or the partisan-political environment of electoral competition, it becomes apparent quickly that there are both costs and benefits to immunity—but that the costs are of a scale and seriousness that far outweigh the benefits.
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