SCOTUS Decision on Presidential Immunity — An MWEG Interview With Expert Benjamin Wittes
Jessica Larson, MWEG’s senior director of advocacy, recently interviewed Benjamin Wittes, editor in chief of Lawfare and senior fellow in governance studies at the Brookings Institution, about the recent Supreme Court decision on presidential immunity. Below is a summary of that conversation as well as the full video interview.
On July 1, 2024, the Supreme Court ruled on presidential immunity in response to former President Trump’s federal indictment. The decision is a historic expansion of presidential immunity, leaving the lower courts with a lot to still determine.
Since 1984, the president has had immunity from civil suits for official acts while in office. We have never had a president who has been charged with criminal conduct. Nixon was pardoned after leaving office. Bill Clinton agreed to a settlement. Nota bene: To say someone is immune does not mean the act is not criminal.
The Supreme Court took a three-pronged view of the issue:
First, personal conduct is not immune. For example, if the president shoots someone and is not acting in the capacity of the commander in chief, the president will not receive immunity.
Second, preclusive and exclusive presidential conduct is absolutely immune from criminal prosecution. This encompasses activity that is exclusively the authority of the president under the Constitution, such as issuing a pardon or firing an executive branch official.
Third, official but not preclusive and exclusive presidential acts may receive a range of presidential immunity, from at least some immunity to absolute immunity. An act such as giving a speech in public falls under this category: It’s a presidential function, but it’s not exclusive presidential power. This is where the deep controversy about this case lies.
The Supreme Court is sending the case back to the lower courts for them to determine whether a given act is official or unofficial conduct and whether immunity would apply. It’s a tricky business, requiring a lot of litigation.
Watch the full conversation here: