Official Acts and Presidential Immunity: Reflections on Trump v. United States
By Joseph M. Bessette and Gary J. Schmitt
Executive summary:
- Many critics of the Supreme Court’s recent decision on presidential immunity conclude that it shields the president from criminal prosecution if he uses his “official” powers to commit a crime. This overstates the six-member majority’s holding.
- The key distinction is between “official” and “unofficial” acts. If the president commands civilian or military authorities to perform an act not authorized by the Constitution—such as assassinating a political opponent—this cannot be an “official” act. It follows that much, if not all, of the illegal activity in which a president might engage would be “unofficial conduct” for which there is no immunity from prosecution.
- This reading of the majority opinion is consistent with the views of leading founders, such as Alexander Hamilton and James Wilson, who assured early Americans that presidents could be prosecuted for committing crimes while in office even when employing Article II authorities.
- Nonetheless, the majority goes too far in implying that the president has absolute immunity for his or her deliberations with executive branch subordinates.
Does the president employ an “official power” if he orders the military to kill a political opponent or stage a coup? Surely not if we understand “official power” to be a power authorized by the US Constitution. Not only does the Constitution lack any language that could be perverted to authorize a murder or coup; such acts would directly violate the president’s express duties to “take Care that the Laws be faithfully executed” and to “preserve, protect and defend the Constitution of the United States.”30 By its own terms, the commander in chief’s power includes the power to command the military, but it does not include the power to command the military to do anything the president wishes. Rather, the clause authorizes the president to issue lawful orders to military subordinates to protect the nation and its interests, subject to the Constitution’s division of national security authority between the president and Congress.
