If the Trump immunity case is decided using textualist and originalist interpretive methods,[1]See here and here. the answer is straightforward. Nothing in the text of the Constitution or federal statutory law references presidential immunity from criminal prosecution for conduct while in office. Rather, the constitutional language closest on point indicates that there is no such immunity.
The Speech or Debate Clause (Article I, section 6, clause 1) shows that the framers of the Constitution knew how to confer immunity if they wanted to, and they did so explicitly. It provides that senators and representatives–
“shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
No comparable provision applies to the president. Even more to the point, Article I, section 3, clause 7 of the Constitution provides:
“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” (Emphasis supplied)
As even Trump’s lawyers concede, this provision affirms that former presidents can be subject to criminal prosecution.[2]His lawyers make the ludicrous argument, which nobody seems to buy, that prosecution can occur only if an official has first been impeached and convicted. This provision also undercuts the notion that there is a difference for purposes of criminal prosecution between a president’s official and private acts. The post-impeachment criminal liability it refers to draws no such distinction but applies to all impeachable acts.
Aside from the absence of textual support, other factors weigh against presidential criminal immunity. Historical context makes it wholly implausible that the framers had the slightest interest in exempting presidents from the criminal law. Having recently won freedom from the British crown, they firmly rejected the concept of the president as akin to a king who would be above the law.
Thankfully, we don’t have much tradition of potential criminal conduct by past presidents. What little there is indicates an understanding that presidents are subject to prosecution for their conduct in office. Former President Nixon accepted a pardon for any criminal liability relating to Watergate. President Clinton negotiated a plea deal to avoid prosecution arising from the Ken Starr investigation. Notably, President Trump’s defense attorneys in his second impeachment trial maintained that the proper remedy for any misconduct on his part was criminal prosecution—a position endorsed by many senators who voted for his acquittal.[3]The opinion by the D.C. Circuit elaborates on these points.
In a 1982 decision, Nixon v. Fitzgerald, the Supreme Court held that presidents have absolute immunity from civil liability for conduct within the “outer perimeter” of their official duties. However, this 5-4 decision from the pre-textualist era is itself dubious and likewise lacks any foundation in the words of the Constitution. In any event, as the Nixon opinion recognized, different considerations apply to civil versus criminal immunity.
Consistent with the foregoing, lower court trial and appellate judges unanimously rejected Trump’s immunity claims. Nevertheless, the Supreme Court decided to take up the case. Based on the oral argument, it appears likely that the Court’s conservative justices will once again depart from the textualism/originalism they claim to favor and find at least some sort of presidential criminal immunity.
The oral argument featured a hypothetical-laden free for all that focused heavily on the policy pros and cons of presidential criminal immunity but gave scant attention to the Constitution’s text and history. Remarkably, the argument also largely avoided the facts of the Trump case.
Even the policy debate was somewhat bizarre. Conservative justices emphasized how the prospect of criminal liability could inhibit presidents in the performance of their functions. On the flip side, however, deterring unlawful behavior is of course a primary purpose of the criminal law. Some justices also expressed great concern over the potential danger that prosecutors could act in bad faith to go after a former president, but they ignored the massive evidence of Trump’s actual bad faith that underlies the criminal charges against him.
The justices also struggled to find a coherent, workable dividing line between official acts by a president that might be subject to immunity and acts outside the president’s official responsibilities, which most if not all justices seemed to agree would not be immunized. But isn’t criminal malfeasance in office by a president just as bad, indeed probably worse, than non-official criminal misconduct?
As noted at the outset, this is an excellent example of a case in which textualism and originalism provide a clear, legally sound resolution: There is no specific basis in the Constitution’s text and history to exempt presidents from the criminal laws that apply to all other citizens. Unfortunately, the Court may eschew this approach in favor of a muddled decision unmoored from the Constitution’s language.
Textualists and originalists accuse those who favor more free wheeling interpretive methods of “making stuff up.” They are particularly critical of announcing constitutional rights or protections that are nowhere mentioned in its text. Yet, the conservative justices seem poised to do just that in this case. If they do, it would have been better for the Court to stay out of the case altogether.