The Relative Insignificance of the Immunity Holding in Trump v. United States (and What Is Really Important in the Decision)

Published by The Lawfare Institute in Cooperation With

Editor's Note: This is a slightly revised version of a speech delivered on Constitution Day, Sept. 17, at the University of Michigan Law School.

Today I focus on Article II of the Constitution, and in particular on how the interpretation of Article II in Trump v. United States will impact executive branch adherence to law. That decision, as you know, concerned the prosecution of former President Donald Trump for allegedly conspiring to overturn the 2020 presidential election by spreading false claims of election fraud in order to obstruct the certification of the election results. The Court held in that context that a former president is absolutely immune from post-presidency prosecution for presidential actions that fall in his exclusive constitutional authority, and at least presumptively immune for other official presidential acts.

Many critics claim that Trump v. United States opens the floodgates to a “lawless presidency. ” Justice Sonia Sotomayor in dissent, for example, said that the majority “effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding.” Justice Ketanji Brown Jackson similarly argued that the majority opinion alters the “individual accountability model” that had previously guided presidents and thus “undermines the constraints of the law as a deterrent for future Presidents who might otherwise abuse their power.”

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