In August 2023, Special Counsel Jack Smith charged former President Donald Trump with using force and deceit to overturn the results of the 2020 election, in violation of federal law. In response, Trump argued, among other things, that he enjoys sweeping immunity from criminal prosecution for any action taken during his presidency, and that his acquittal at an impeachment trial bars his subsequent prosecution.

The D.C. District Court rejected Trump’s sweeping immunity claims, and on appeal, the D.C. Circuit unanimously upheld this ruling. Trump sought an emergency stay of the D.C. Circuit’s mandate from the Supreme Court. CAC filed an amicus brief at the Supreme Court on behalf of constitutional law scholars urging the justices to reject the application for a stay and allow the federal criminal proceedings against Trump to continue. The Court stayed the mandate and granted cert on the question of whether a former president is immune from criminal prosecution for allegedly official acts committed during his tenure in office. CAC filed a brief on behalf of constitutional law scholars urging the Court to reject Trump’s immunity arguments.

The president—or the former president—is not a king. Our brief made three principal points.

First, constitutional text and history do not support President Trump’s broad immunity claim. The text of the Constitution provides a form of immunity for legislators under the Speech or Debate Clause, but not for sitting or former presidents. In other words, the framers knew how to draft immunity language, but chose not to do so for presidents. Seeking to distinguish the president from a British King, the Constitution’s framers and ratifiers repeatedly indicated that a president, in the words of James Iredell, was “punishable by the laws of his country” and “not exempt from a trial.”

Second, Supreme Court precedent does not support Trump’s claim of absolute immunity from criminal prosecution. In Nixon v. Fitzgerald, the Supreme Court held that the president enjoys immunity from civil damages claims for certain actions taken while in office, but it did not address immunity from criminal prosecution. And significantly, the rationales the Court relied upon in Fitzgerald do not support Trump’s claims. Fitzgerald specifically distinguished a president’s civil damages liability from instances in which a president faces criminal prosecution, where the “interest to be served” by exposing the president to liability are much greater.

Finally, the Impeachment Judgment Clause does not bar the prosecution of a former president, even following an acquittal in impeachment proceedings. In prescribing that a “Party convicted” is subject to indictment, the Clause does not silently prohibit indictment of a party acquitted in impeachment proceedings, nor does it differentiate between the President and other officials. Instead, the Clause makes clear that while the only penalty that the Senate can impose following impeachment is removal from office, a “Party convicted” may still be subject to additional punishment through the nation’s criminal legal system. The framers viewed the impeachment process as entirely distinct from criminal prosecution and thus thought that the result of one proceeding should have no impact on the other. They saw impeachment as “a proceeding purely of a political nature,” completely unrelated to “ordinary jurisprudence.” This is true for every federal officer subject to impeachment, including the president.

In sum, because there is no basis in constitutional text and history or Supreme Court precedent for  Trump’s immunity claims, the Supreme Court should have rejected it.

In July 2024, the Supreme Court ruled in favor of Trump in a 6-3 decision, holding that a former president is entitled to at least presumptive, if not absolute, immunity from prosecution for all official acts. Chief Justice Roberts, writing for the majority, distinguished between three types of actions a president may take. First, there are actions taken as a part of his core constitutional authority, which derive from the Constitution and lie outside the scope of Congress or the courts. According to the Court’s majority, these merit absolute immunity. Second, there are official acts that are taken as part of his role as president, but that do not constitute core constitutional powers; these are given “presumptive” immunity. Third, and finally, there are unofficial acts for which there is no immunity. The Court provided minimal guidance on how to determine whether an act is official or unofficial, leaving that for lower courts to explore.

Turning to the specific actions in the indictment against Trump, the majority provided a conclusive ruling on only one: discussions between Trump and the Acting Attorney General at the time were, according to the Court’s majority, “within his exclusive constitutional authority” and therefore “absolutely immune from prosecution.” As to other actions in the indictments, the Court declined to determine whether they should be considered official, and remanded those questions back to the district court.

Justices Sotomayor, Kagan, and Jackson all dissented. Justice Sotomayor’s dissent, joined by Justices Kagan and Jackson, charged that the decision “reshapes the institution of the presidency.” Citing our brief, Sotomayor also noted that the majority’s opinion is inconsistent with the text and history of the Constitution, which do not support such broad presidential immunity. According to Justice Sotomayor, the decision’s result is that “the President is now a king above the law”, and she concluded by noting that the majority’s decision leaves her with “fear for our democracy.”