Today we will consider the implications of Trump v. United States for the overall legal accountability of the executive. At the outset we should acknowledge that the future effect of this decision, as it will be interpreted and applied by the courts and the executive branch, cannot be predicted with certainty. Indeed, the decision itself comes with the caveat that it is too early “to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.” Trump, 603 U.S. at __, slip op. at 15. Still, we can identify sufficiently dire consequences that are certain, likely, or plausible to require taking the matter with the utmost seriousness.
We might begin with the question whether Trump places the president “above the law.” The Court indignantly rejects this accusation:
Like everyone else, the President is subject to prosecution in his unofficial capacity. But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties. Accounting for that reality—and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would—does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.
Trump, 603 U.S. at __, slip op. at 40. Justice Thomas puts the point more succinctly, explaining “there has been much discussion about ensuring that a President ‘is not above the law’ . . . [but] the President’s immunity for his official acts is the law.” 603 U.S. at __, slip op. at 8 (Thomas, J., concurring) (emphasis in original).
These responses miss the point. In monarchies it may be the law that the king “can do no wrong.” But that is precisely what it means to say that the king is above the law. Similarly, if the majority’s reading of the Constitution means, as Professor Vermeule puts it, that the president “can do no legal wrong,” then it has effectively placed the president above the law, whether one agrees with its reading or not.
It is instructive to compare the immunity recognized in Trump with that available to senators and representatives under the Speech or Debate Clause. In contrast to the president, members of Congress have an explicit constitutional immunity for “any Speech or Debate in either House.” Nonetheless, the Court has made clear that the Speech or Debate Clause is not designed “to make Members of Congress super-citizens, immune from criminal responsibility” and it has rejected arguments that would render members “virtually immune from a wide range or crimes simply because the acts in question were peripherally related to their holding office.” United States v. Brewster, 408 U.S. 501, 520 (1972). In other words, the Court declined to find members to be above the law simply because they acted in their official capacities.
The Trump Court may believe that the president’s “sweeping powers and duties” justify giving him immunity far beyond that available to members of Congress. (As I explain here, the acts charged in the Trump indictment would not be protected under the reasoning of the Court’s Speech or Debate jurisprudence). But this is just another way of saying that the majority thinks the president should be a “super citizen” who, for most purposes, is above the law.
The fact that the president’s immunity does not extend to his “unofficial capacity” may not be all that important, given the Court’s extremely broad view of official acts and its failure to identify a coherent test for identifying their limits. See 603 U.S. at __, slip op. at 28 (Sotomayor, J., dissenting) (“If the majority’s sweeping conception of ‘official acts’ has any real limits, the majority is unwilling to reveal them in today’s decision.”); 603 U.S. at __, slip op. at 19 (Jackson, J., dissenting) (“the Court has neglected to lay out a standard that reliably distinguishes between a President’s official and unofficial conduct”); Keith E. Whittington, Presidential Immunity, 2023-24 Cato Sup. Ct. Rev. 283, 299 (2024) (“the Court suggested an extremely broad understanding of what falls within the outer perimeter of the President’s office for this purpose”); id. at 314 (“The Court created more uncertainty with[] its expansive notion of official presidential acts and its refusal to provide more of a hint as to where those limits are to be found.”). Even the Court itself acknowledges that “[d]istinguishing the President’s official actions from his unofficial ones can be difficult.” Trump, 603 U.S. at __, slip op. at 17.
Moreover, even if one can identify crimes that are so clearly “personal” as to be outside the scope of immunity conferred by the Court, I would not take too much comfort from that fact. After all, dictators routinely use official powers to eliminate rivals, suppress dissent, and enrich themselves and their cronies. Why commit “personal” crime when “official” crime works so well? Heck, even Henry VIII did not behead his wives in his personal capacity, instead using the official cover of a treason trial to attain the desired result. As we discussed in the first post, the abuse of office to commit crimes is the foremost concern of the impeachment power and the Constitution’s express preservation of criminal liability for former presidents and other impeachable officers. Cf. Trump, 603 U.S. at __, slip op. at 19 (Jackson, J., dissenting) (“it is when the President commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire”).
The majority accuses the dissents of “fear mongering on the basis of extreme hypotheticals.” 603 U.S. at __, slip op. at 40. It refers to hypotheticals posed by the dissents such as having Seal Team Six kill a political rival, organizing a military coup to retain power, taking a bribe in exchange for a pardon, and (admittedly a creative one from Justice Jackson) “removing” a cabinet officer through poisoning.
Unfortunately, the majority does not explain whether it means these hypotheticals are “extreme” because they would clearly fall outside the scope of the immunity it announces or because it simply believes that they would never occur. It does not seem to be the former because the majority offers no reason why these hypotheticals would not qualify as official acts under its framework. This silence is particularly telling given that during oral argument Trump’s counsel acknowledged that the use of the military to commit a political murder could be considered an official act:
Justice Sotomayor: If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that with his official acts that—for which he can get immunity?
Mr. Sauer: It would depend on the hypothetical. But we can see that could well be an official act.
4-25-24 Argument Tr. at 9. To be sure, Justice Alito later attempted to clean up this concession, suggesting that an assassination order to Seal Team Six would not be “plausibly legal” and would be “absolutely outrageous.” Argument Tr. at 24. But this qualification did not make it into the majority opinion, perhaps due to the difficulty of explaining why the allegations in the indictment fall in the “plausibly legal” rather than “absolutely outrageous” category.
If the hypotheticals raised by the dissents are too far-fetched, consider some real-life cases. We have already discussed President Nixon’s obstruction of justice in connection with Watergate. One could also look at the extensive controversies regarding the legality of enhanced interrogation and warrantless wiretapping following the 9/11 attacks. The Office of Legal Counsel (which at the time included John Yoo and Robert Delahunty) initially argued that these practices were lawful based in part on the contention that interpreting federal law to prohibit them would impermissibly infringe on the president’s constitutional authority as commander-in-chief or, at a minimum, would raise a serious constitutional question.
For example, in OLC’s memorandum of August 1, 2002 regarding the applicability of federal criminal laws against torture to detainee interrogation, it stated that “the [torture] statute would be unconstitutional if it impermissibly encroached on the President’s constitutional power to conduct a military campaign.” Memo of 8-1-02 at 31. Emphasizing that President George W. Bush was “in the middle of a war in which the nation has already suffered a direct attack,” it explained that under these circumstances any effort to apply the criminal law “in a manner that interferes with the President’s direction of such core war matters as the detention and interrogation of enemy combatants” would be unconstitutional. Id. OLC further declared that “[a]ny effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander-in-Chief authority in the President.” Id. at 39.
To say that this memorandum and similar opinions issued by OLC in the immediate aftermath of the 9/11 attacks were controversial would be an understatement. OLC itself withdrew many of these opinions and specifically repudiated the view quoted above regarding “the Commander-in-Chief authority.” See, e.g., Definition of Torture Under 18 U.S.C. §§ 2340-2340A, 28 Op. O.L.C. 297, 298 (2004) (superseding the 8-1-04 memorandum and withdrawing the discussion of the commander-in-chief power). In his 2005 confirmation hearing to become head of OLC, Steven G. Bradbury (who currently serves as deputy secretary of transportation) specifically disavowed the above quoted proposition regarding Congress’s alleged lack of authority to regulate the interrogation of battlefield combatants, and he later confirmed the Justice Department’s repudiation of such views in a formal memorandum. Status of Certain Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001, 33 Op. O.L.C. 131, 134 (2009). John Yoo was lucky to escape without the imposition of professional sanctions for his role in preparing these opinions and advancing the commander-in-chief argument.
Despite this thoroughgoing repudiation, however, the Trump opinion appears on its face to confirm Yoo’s position and the arguments advanced in the withdrawn OLC memoranda. Indeed, because the torture and warrantless wiretapping opinions were arguably bounded by the exigencies of a recognized national security emergency and the president’s exercise of formal authorities in response, Trump may be thought to go considerably further in declaring matters related to the exercise of the president’s core constitutional powers to be beyond congressional legislative authority.
To be sure, there are plenty of open questions regarding the scope and application of Trump’s pronouncements about the president’s “conclusive and exclusive” authorities. As Professor Whittington notes, the distinction the Court draws between core and noncore official acts (like the distinction between official and unofficial acts) is far from clear and “begs more questions than it answers.” 2023-24 Cato Sup. Ct. Rev. at 309; see also Shalev Gad Roisman, Trump v. United States and the Separation of Powers, 173 U. Pa. L. Rev. Online 33, 38 (2025) (“the Court provides no method for figuring out what powers are exclusive and which are not”). Whittington, who might be best described as lukewarm on the Trump decision, thinks the Court probably did not mean to validate the hypotheticals posed by the dissents but concedes there is little in the opinion to substantiate that intuition:
By its silence, did the Court’s majority mean to say that the President is, in fact, some kind of king? That the President could, in fact, order Seal Team Six to assassinate a political rival? That the President could, in fact, initiate a self-coup? It seems likely that the majority did not think so, but the opinion simply does not provide the material for explaining why. . . . The opinion is so concerned with papering over differences that it says very little that is meaningful.
2023-24 Cato Sup. Ct. Rev. at 310; see also id. at 312 (suggesting that the Trump decision may protect a president who commits treason in his “official capacity”).
Here, though, it becomes crucial to recognize that for many purposes the initial interpretation and application of the Trump decision will be by OLC and other executive branch lawyers. No one should expect, and certainly should not count on, the decision to be read in any way other than its broadest interpretation would allow.
We should therefore not discount the worst case scenario, some sense of which may be found in this post by Professor Vermuele. Vermuele elucidates a “maximalist theory of executive power” from Trump and certain other unitary executive precedents. Under this theory there can be no such things as independent agencies “there is no executive power that lies outside the Presidency.” There can be no delegation of authority to subordinate officials, even of an adjudicative or quasi-adjudicative nature, which is beyond the power of the president to command and direct. Because all executive officers, both principal and inferior, are nothing more than extensions of the president’s will, they also partake equally in his civil and criminal immunity.
Despite this provocative framing, Vermuele contends that this theory does not make the president a dictator because he would remain “subject to the directive power of the law, even if not its coercive power.” It seems to me that some dictators have in theory been subject to the law, even if in practice their word is the law. I am also not sure how to square this caveat with Vermuele’s suggestion that “the President can do no legal wrong” under this maximalist theory. (Or, as President Trump would proclaim on Truth Social early in his second term, “He who saves his Country does not violate any Law.”).
In any event, Professor Goldsmith believes Vermuele’s theory is coming to life in the new Trump administration. Trump’s exercise of direct control over the Justice Department (as illustrated by Attorney General Bondi’s suggestion that DOJ attorneys work for the president and are “his lawyers”) and his implicit or explicit claim of broad if not unlimited discretion as to law enforcement can be traced to Trump, which declares that the president has “exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials.” The Court’s claim of exclusive presidential enforcement discretion, Goldsmith says, is “entirely novel,” “especially vis-à-vis Congress,” and has “massive implications.” One example is the Tik-Tok executive order, which amounts to a presidential decision not to enforce an act of Congress, upheld as constitutional by the Court, simply because the president does not want to.
Other examples, according to Goldsmith, of the Trump administration operationalizing the maximalist theory of executive power is its rejection of independent agencies, its claim of presidential authority to override civil service protections for career officials, and its assertion that the president has the inherent authority to impound funds appropriated by Congress.
In short, we are faced with a perfect storm of a Court with a strong unitary executive bias, a rushed decision that casually issues “entirely novel” dicta in support of executive power, and an administration that is determined to seize every ounce of power it plausibly can (and then some). Like Whittington, Goldsmith doubts that Chief Justice Roberts, the author of the Trump decision, admires “the maximalist interpretation of Trump and its predecessors that has spawned executive branch chaos and inattention to legal constraints.” Perhaps the chief justice is coming to regret the hasty reasoning of the Trump decision.
Ironically, the Court might have been better advised to adopt the theory advanced by Trump’s legal team founded on the Impeachment Judgment Clause. As you may recall, that clause provides that an impeached and convicted officer “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S. Const., art. I, § 3, cl. 7. Trump’s defense “argued that this provision mean a President may be convicted of a crime only if he has previously been impeached by the House and convicted by the Senate.” Whittington, 2023-24 Cato Sup. Ct. Rev. at 300 (emphasis in original).
Whittington notes that Trump’s theory “is at odds with the text, history, and logic of the impeachment power.” Id. That’s true, but it is even more true of the theory the Court actually accepted. At least Trump’s theory gave meaning to the Impeachment Judgment Clause rather than reading it out of the Constitution, which is probably why his lawyers pressed it so hard.
Trump’s theory, moreover, would be less threatening to the constitutional order. First, it would only give protection to presidents, not anyone else. (This is hard to explain based on the text of the Impeachment Judgment Clause, but, as Justice Gorsuch might say, close enough for government work). Second, while presidents would have a good deal of protection against vindictive prosecutions for either official or unofficial conduct, they would not have absolute immunity. They would still have an incentive to avoid actions that are clearly corrupt or wrongful because such actions might convince two-thirds of the Senate to vote for conviction.
Two other legal conclusions would be necessary to make this framework effective. First, former presidents would need to be impeachable. This would prevent presidents from committing crimes near the end of their term or from being overly confident that they are protected by a current Congress that is politically favorable. Second, a president could not lawfully pardon himself. Assuming both these propositions are true (which I believe they are), we would have a system which, while perhaps not optimal, would be much better than what we have now. Alas, that is water under the bridge.
In my next post we will look at the policy rationale of the Trump decision and whether the Court is likely to succeed in achieving its policy objectives.