Chutkan Has Discretion in Trump Immunity Case. She Should Use It

The US Supreme Court held July 1 that presidents are “absolutely immune” to criminal liability in areas of their core constitutional competence. In such areas, Chief Justice John Roberts wrote, the president’s discretion “cannot be subject to further judicial examination.” In addition to rejecting the Framers’ view of the relationship among the three branches, the court also imposed significant limits on judicial review.

As we anticipated in an amicus brief filed with 14 national security professionals, granting immunity gives the president license to commit unspeakable acts with impunity, and also creates profound confusion within the military chain of command and among non-immune subordinates in the federal government.

As long as a president can plausibly claim to exercise core constitutional authority, these acts would all be immune to prosecution under the court’s decision: ordering troops to commit atrocities against US citizens, firing a special counsel appointed by an attorney general to investigate the president to obstruct justice, or strong-arming an attorney general to falsely declare election fraud.

Outside the president’s closest advisers, that immunity wouldn’t carry forward to others who must implement these illegal orders. The same holds for congressional attempts to intrude upon these core constitutional powers. Roberts writes, “Congress cannot act” on “the President’s actions on subjects within his ‘conclusive and preclusive’ constitutional authority.”

In this regard, the Supreme Court has reversed years of constitutional precedent concerning the relationship between Congress and the president, in which Congress was understood to have the authority to delegate power to presidents within the broad outlines of Article II.

District Courts’ Power

Can anything blunt the edge of this decision in Trump v. United States? To address the broader danger of unchecked presidential authority, only a Constitutional amendment would guarantee a president can be held accountable under the law. Putting such far-flung measures aside, the only hope we see is embedded in the Supreme Court’s decision to remand the case to the lower court in the first place. That decision suggests federal courts retain the ability to determine which presidential acts fall into which categories.

Thus, a president may claim action on the basis of inherent Article II power, but Trump v. United States suggests federal courts retain the ability to reject a president’s claim and to determine, instead, that the president was engaged in official acts of a non-constitutional nature, or that the president was acting in an unofficial capacity.

In the present criminal matter, US District Judge Tanya Chutkan will most likely, and properly, find that Donald Trump was acting in his personal capacity when he urged his supporters to descend upon the Capitol and coerce Congress to reject the electoral vote count. Trump, of course, will argue to the contrary. But Chutkan is the one who will decide.

Projected into a future setting with an autocratic president, this would give federal courts a means of intervening in the face of broad and dangerous claims of presidential authority. If a federal court labels the president’s actions as personal capacity or official capacity outside core constitutional functions, the president will not be entitled to the unassailable deference that Roberts’ opinion suggests.

Framework

When, broadly speaking, should a court reject claims that a president’s action was within the core constitutional competence of the presidency?

First, when the president is manifestly trying to reverse the results of a presidential election or attempting to gain some other sort of personal benefit. Second, when the conduct in question fails to serve any constitutional function within our system and thus plausibly is excluded from the president’s official job description.

How far a court’s latitude will extend—and what it will ultimately mean for cases involving claims of presidential immunity—remains to be seen. But one clear line that must not be crossed is to allow the presidency to be a shelter for illegal conduct. That mistaken premise has already led to an appalling use of presidential authority to justify criminal conduct, such as when the US engaged in the torture of detainees in the war on terror.

On remand, Chutkan could easily find Trump was acting in his personal capacity when he decided to urge his supporters to descend upon the Capitol and coerce Congress to reject the electoral vote count. Therefore, those charges in the indictment that turn on such conduct should be unaffected by the Supreme Court’s ruling. Trump, of course, will argue he was exercising his constitutionally protected powers.

The critical point, however, is that the characterization of the president’s conduct lies with the trial court. That leaves significant leeway for federal judges to act, as long as they remain within the broader constitutional framework outlined in the majority opinion.

The case is Trump v. United States, 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

Claire Finkelstein is professor of law and philosophy at the University of Pennsylvania and the director of Penn’s Center for Ethics and the Rule of Law.

Richard W. Painter is professor of corporate law at University of Minnesota Law School and served as chief ethics lawyer in the White House from 2005-2007.

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