Rule of Law

RELEASE: Justices Grapple with Constitutional Text and History in Oral Argument About Trump’s Unprecedented Immunity Claim

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Trump v. United States, a case in which the Court is considering 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:

At the Supreme Court this morning, Donald Trump’s counsel continued to maintain a broad claim that former presidents are forever immune from criminal prosecution for actions taken while president. Many justices seemed skeptical of this broad and unprecedented claim.

Referencing amicus briefs like the one CAC filed on behalf of an ideologically diverse group of scholars of constitutional law, Justice Sotomayor emphasized that the Constitution’s Framers considered, but rejected, the possibility of granting explicit immunity for presidents or former presidents, even though several state constitutions granted immunity for their executive officers at the time. Justice Kagan made the same point, putting it bluntly: The Framers did not put an immunity clause in the Constitution.

As Justice Jackson noted, a decision granting immunity to former presidents would “embolden” presidents to commit crimes while in office. And the crimes at issue here—using fraud to subvert a presidential election—underscore how important the possibility of presidential accountability for criminal conduct is. Nothing less than the future of our democracy hangs in the balance.

While Trump’s counsel urged the justices to remand the case for further proceedings to determine which allegations involve official presidential acts and “expunge” those from the indictment, such a remand will be unnecessary if the Court concludes, as it should, that former presidents enjoy no immunity for alleged criminal actions that occur while in office. And in any event, several justices emphasized—and Trump’s attorney conceded—that the indictment involves allegations that involve actions that are completely unofficial. Thus, as several justices explained, prosecution could occur expeditiously no matter whether official acts are involved.

In short, the Court should act quickly to reject the former president’s broad claims. There have been numerous instances in the past in which the Supreme Court, recognizing the importance of expeditious resolution of a case, issued decisions within weeks—even days—of oral argument, including the Court’s 2000 decision in Bush v. Gore. As today’s argument made clear, there’s no reason why this case can’t be decided just as expeditiously as those earlier cases.

Former President Trump’s arguments are at odds with the text and history of the Constitution, as well as the Supreme Court’s own precedent. The Supreme Court should say so—and it should say so quickly.



Case page in Trump v. United States:

Smita Ghosh, The Founding Fathers Didn’t Think Donald Trump Should Get Immunity Either, Newsweek (Feb. 8, 2024),

Brianne Gorod, There Can Still Be a Trump Federal Trial Before Labor Day, Newsweek (March 5, 2024),