Barrett’s Writing on Immunity Provides Another Path on Rehearing

The breadth of the US Supreme Court majority’s presidential immunity opinion shocked many constitutional scholars. Exceeding what had to be resolved to decide the case—whether former President Donald Trump is immune from criminal prosecution for his alleged role in efforts to overturn the 2020 presidential election—the majority’s ruling seems to eviscerate the checks and balances upon which our Constitution was built.

The Department of Justice, through Special Counsel Jack Smith, should consider filing a petition for rehearing so the justices can correct course before the unanticipated consequences of their broad opinion come to pass. Although this could delay proceedings in the district court, it’s important for the government to put down this marker for history and future misuse of the precedent.

At least five justices must approve a petition for rehearing, and at least one of them must have concurred in the original decision. That means any of the six justices in the majority could seek a vote on rehearing, including Justice Amy Coney Barrett, whose separate concurring opinion presents a more workable and constitutionally sound approach to the question before the court.

In a rehearing petition, the special counsel could explain how the majority’s opinion risks wreaking havoc on government functions. The majority’s capacious interpretation of immunity for a president’s “core constitutional powers” is breathtaking.

It isn’t limited to powers explicit in the Constitution, such as the power to grant pardons, make appointments, and veto legislation—all of which the special counsel agreed at argument weren’t subject to criminal prosecution. Instead, the majority’s opinion seems to extend absolute immunity to all the president’s interactions with executive branch agencies, relying on the president’s constitutional responsibility to “take Care that the Laws be faithfully executed.”

It starts at the DOJ, with the holding that Trump is immune from prosecution for pressuring DOJ officials to urge certain states to replace the legitimate presidential electors with fraudulent Trump electors based on false claims of election fraud.

As the indictment alleges, Trump told the acting attorney general, “Just say that the election was corrupt and leave the rest to me and the Republican congressmen.” But because “investigation and prosecution of crime” is within the exclusive authority of the executive, the majority tells us, not even a request to conduct a “sham” investigation would be prosecutable. That is so, we are told, because the president’s exercise of core constitutional powers is “conclusive and preclusive,” meaning that Congress can’t act upon it, nor can the courts examine it.

The ramifications for the DOJ alone are stunning. What about Congress’s Article I authority to legislate, appropriate funds, and conduct oversight? Is Congress now disabled from using its constitutional powers where they might clash with this unprecedented and expansive view of the president’s “conclusive and preclusive” authority?

And there’s no reason to stop at the DOJ. The majority’s rationale would at least appear to apply to all executive branch agencies, including the Department of Defense, thus leading the dissent to point out that the president would apparently be immune from prosecution if he ordered Seal Team 6 to assassinate a political rival—a hypothetical the majority refused to refute.

The elevation of the president above the other two co-equal branches of government would have been a shock to the framers, who used overlapping authorities as a means of ensuring that no single branch would become all powerful.

Barrett made this point, explaining that “the Constitution does not vest every exercise of executive power in the President’s sole discretion,” and that “Congress has concurrent authority over many government functions, and it may sometimes use that authority to regulate the President’s official conduct, including by criminal statute.” She wrote she wouldn’t hold “that all exercises of the Take Care power fall within the core executive power.”

Instead, Congress could regulate conduct that may fall within the president’s official acts, but nevertheless falls outside Barrett’s narrower interpretation of core constitutional powers, as long as there is “no danger of intrusion on the authority and functions of the executive branch.”

That “no danger” test comes from the majority, which deceptively relied on a Nixon-era case about presidential immunity from civil suits that required a balancing of the public interest against the danger of intrusion on executive functions, not proof of no danger at all to executive authority.

That’s another problem with the majority opinion that should be corrected, but even under that seemingly insurmountable test for non-core official acts, Barrett provided a workable example. She described it as “hard to see” how prosecution based on Trump’s alleged request to the Arizona House Speaker to call the state legislature into session to entertain baseless allegations of election fraud “would unconstitutionally intrude on executive power” where the president has no authority over state legislators, even if communicating with state legislators about election integrity can be considered an official act.

Likewise, Barrett said that deciding which of the president’s actions are official, and which are unofficial—and thus not immune—isn’t always a difficult question. To her, Trump’s alleged role in organizing alternate slates of electors is unofficial conduct for which there’s “no plausible argument for barring prosecution.”

Barrett also would allow, contrary to the majority, the introduction of evidence about official acts (say, making an ambassadorial appointment) to prove charges based on unofficial acts (say, receiving a bribe for the appointment), something about which the chief justice inexplicably reversed course after seeming to agree during oral argument.

Barrett’s opinion—though certainly not beyond criticism—provides practical guidance going forward, with respect for the separation of powers between the three branches of government. Rehearing would give the court the opportunity to fully consider not only the alarming potential consequences of the majority opinion, but also whether Barrett’s opinion provides a more constitutionally sound path.

Although rehearing on the merits is rarely granted, in this case, it may be justified to preserve the constitutional structure that has served us well for more than 200 years.

The case is Trump v. United States, 2024 BL 223451, U.S., No. 23-939, decided 7/1/24

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Mary McCord is executive director of the Institute for Constitutional Advocacy and Protection at Georgetown Law and was formerly the Acting Assistant Attorney General for National Security at the DOJ, the Principal Deputy Assistant Attorney General for National Security, and a long-time federal prosecutor.

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