The recent US Supreme Court opinion on presidential immunity has unsettled many constitutional scholars due to its expansive interpretation. The decision, pertaining to former President Donald Trump’s potential immunity from criminal prosecution over alleged actions to overturn the 2020 election, suggests extensive protection for a president’s “core constitutional powers” far beyond what many believed necessary.
In its broad reading, the majority opinion appears to grant absolute immunity to all of the president’s engagements with executive agencies, including contentious efforts to manipulate Department of Justice (DOJ) activities. Prosecutors, including Special Counsel Jack Smith, should consider requesting the court to rehear the case, even though it might delay district court proceedings. Such a move is essential to prevent the potentially far-reaching consequences of the current ruling from taking root. The entire court opinion can be found here.
A rehearing petition requires the approval of at least five justices, with at least one from the original majority. Justice Amy Coney Barrett’s concurring opinion offers a more measured and constitutionally consistent approach, raising the possibility that she might advocate for such a petition. Barrett contended that the Constitution does not provide the president with unchecked authority over all executive powers and that Congress’s regulatory powers could extend to certain presidential activities without encroaching on executive privileges.
The scope of the majority’s interpretation is alarming. It covers not just explicit presidential powers like vetoes or pardons but potentially any executive action. This could immunize significant actions such as Trump’s directive to DOJ officials about election investigations, which, according to the indictment, involved dubious assertions about election fraud and efforts to install alternate electors. These actions profoundly implicate DOJ responsibilities.
Barrett highlighted the risks this ruling poses to the balance of power. She points out that the majority’s opinion could cripple Congressional authority in lawmaking, oversight, and appropriations where presidential actions are concerned. Moreover, the potential extension of this immunity to other executive agencies significantly undermines the fundamental constitutional check on presidential power.
Barrett advocates for a narrower interpretation, arguing that some presidential actions could still be subject to criminal statutes without threatening executive functions. She expresses skepticism about how Trump’s alleged attempts to involve state legislatures in election fraud would constitute protected presidential conduct. Her opinion also differs in allowing evidence of official acts to establish unofficial, prosecutable actions, as opposed to the majority’s more restrictive view.
The dissent mentions hypothetical scenarios, like a president ordering illicit actions or using Seal Team 6 to assassinate a rival, which the majority sidesteps. Such hypotheticals underscore the dangerous precedent the current ruling could set. This points to a need for the Supreme Court to reassess the majority opinion’s extensions, validating Barrett’s more constitutionally grounded perspective.
Barrett’s views suggest a pragmatic future course that respects the separation of powers. A rehearing would enable the court to fully address the potential fallout from the present ruling and explore Barrett’s approach’s constitutional merits. Given the gravity of the implications for the constitutional balance of power, a rehearing, while rare, appears warranted. Further details on the case are available in the full opinion at Trump v. United States, 2024 BL 223451, U.S., No. 23-939, decided 7/1/24.