Rule of Law

RELEASE: High Court’s Decision on Presidential Immunity Is Too Little and Too Late to Ensure the Framers’ Vision of Presidential Accountability

WASHINGTON, DC – Following today’s decision at the Supreme Court in Trump v. United States, a case in which the Court considered whether former President Donald Trump is immune from criminal prosecution for actions taken during his presidency, Constitutional Accountability Center Appellate Counsel Smita Ghosh issued the following reaction:

It took the Court months to reach today’s decision, even though the Constitution’s text and history made this an easy case. As CAC’s amicus brief on behalf of constitutional law scholars emphasized, the Framers of the Constitution explicitly declined the invitation to write presidential immunity into the text of the Constitution. Citing our brief, Justice Sotomayor’s dissent explains that history and tradition show that the Framers, bent on distinguishing the president from the British King, presumed that our chief magistrate would be subject to criminal prosecution. And this history and tradition—factors that the Court’s conservatives profess to care about—should have dictated the result here.

The Court’s conservative majority completely ignored this history and tradition.  By holding that former presidents enjoy immunity from prosecution for any conduct that falls within their “official responsibilities,” and by defining “official responsibilities” broadly enough to include an alleged attempt to pressure federal officials to decertify the results of the 2020 election, today’s ruling leaves the public without protection from presidential misdeeds.

Of course, today’s opinion did reject Trump’s unprecedented claim of immunity for any conduct for which he was not impeached during his presidency. But this rejection is too little—and much too late—for the real presidential accountability that our Framers envisioned. And it leaves the country without a significant tool for ensuring accountability for presidents who engage in coups, assassinations, or—as here—allegedly fraudulent schemes to maintain power. Bent on ignoring what it called “present exigencies,” the majority lost sight of the significance of the charges facing the former president, and our country, today.

Constitutional Accountability Center Vice President Praveen Fernandes added this reaction:

To our Constitution’s Framers, presidents were not kings. While today’s conservative majority opinion doesn’t explicitly reject that principle, it corrodes it beyond recognition by blessing the unprecedented and unsupported claim that presidents enjoy presumptive immunity for their official acts. In reaching today’s result—and taking an unconscionably long time to do so—the Court’s conservative majority has undermined our democracy and compromises the upcoming election. As Americans approach the upcoming presidential election, they deserve to know whether one of the candidates is guilty of attempting to overturn the results of the last one. The district court must now sort through these factual issues with urgency so that a fair and thorough trial can proceed as quickly as possible. The American people deserve nothing less.



Case page in Trump v. United States:

Smita Ghosh, The Founding Fathers Didn’t Think Donald Trump Should Get Immunity Either, Newsweek,