Eroding Democracy: Trump v. United States and the Supreme Court’s Expansion of Executive Power

On July 1st, 2024, the Supreme Court ruled in Trump v. United States that U.S. presidents have absolute immunity from criminal prosecution for official acts taken within their explicit constitutional powers and presumptive immunity for any official act taken while in office. This ruling dramatically expands the legal protections of the executive. For former President Trump, it means that key charges related to his alleged role in overturning the 2020 election and the events surrounding the January 6th, 2021 insurrection have been dismissed, while the remaining indictments have been sent back to the D.C. Circuit Court of Appeals to be reviewed under the new immunity framework.

The Trump v. United States case arose from the indictment of former President Donald Trump in August 2023, following Special Counsel Jack Smith’s investigation into the January 6th attack on the U.S. Capitol. Trump argued that his actions as president were shielded by absolute criminal immunity and further claimed that a former president could not be criminally prosecuted without first being impeached and convicted by Congress. U.S. District Judge Tanya Chutkin denied Trump’s motion to dismiss on immunity grounds, setting the stage for the Supreme Court’s eventual ruling.

The central question before the Court was whether the separation of power doctrine grants sitting and former presidents immunity from criminal prosecution for actions taken while in office, and if so, how far-reaching this immunity might be. The Supreme Court, in a landmark 6-3 decision, ruled in favor of former President Trump and established a framework of degrees of presidential criminal immunity that differentiates between official acts grounded in constitutional authority, those carried out under congressional authorization, and unofficial acts.

The Supreme Court’s decision represents a fundamental departure from the text of the Constitution, the precedents established by previous rulings, the intentions of the Founders, and the broader moral principles that form the basis of American democracy. By creating a broad framework of presumptive immunity for the president that seems to cover most actions taken in office, the Court has created an unprecedented expansion of executive power and a potential shift towards authoritarianism. This development poses serious dangers to democracy, undermining the principle that no one is above the law. It also introduces real-world consequences — if Trump is elected to office again, his vast immunity could embolden him to commit further criminal acts.

Chief Justice Roberts, writing for the majority, justifies the expansion of presidential immunity by invoking the Framers’ vision of the presidency and the Constitution’s principle of separation of powers. Roberts, drawing upon Youngstown Sheet & Tube Co. v. Sawyer, differentiates between official executive acts that draw upon powers derived directly from the Constitution and those conferred by Congress. In Youngstown, the Court differentiated between varying degrees of presidential power, a framework that Roberts utilizes here. Justice Roberts contends that the powers explicitly granted to the president by Article II, Section 2 of the Constitution can not be encroached upon by any other branch of government, and thus it can not be infringed by the judiciary through a criminal trial. He then argues that the larger question regards the level of immunity that presidents have in the “zone of twilight” that Youngstown discusses — a realm where the President operates with a degree of ambiguity, as Congress has neither granted nor denied power.

Justice Roberts ultimately decides that within this zone of twilight, the President possesses a concept of “presumptive” immunity, arriving at this conclusion by looking to the precedent of, and extending the protections granted in, Nixon v. Fitzgerald. In Nixon, the Court first articulated the concept of presidential immunity from civil liability for official acts. In that case, the Court ruled that the President is absolutely immune from civil suits related to any official actions taken while in office, ensuring that the President can govern without the constant threat of litigation. Justice Roberts builds on this ruling to argue that similar immunity should apply in criminal cases. Roberts posits that the risks associated with criminal prosecution are far greater than those posed by civil suits, thereby warranting an equivalent level of protection from criminal investigations. His opinion draws heavily on arguments made in Nixon that prosecuting a sitting or former president for official acts could distract the president from carrying out their duties. Roberts further appeals to the need for a “vigorous and energetic” executive, capable of making bold decisions without fear of prosecution.  He argues that the president’s discretionary responsibilities demand at least a presumptive immunity — immunity unless the government can show that prosecuting such conduct would not interfere with the functions of the executive branch. This creates a virtually insurmountable hurdle for holding the president accountable, even for actions as severe as attempting to overturn the results of a presidential election.

Roberts’ opinion poses grave risks. By defining nearly any act conducted within the scope of presidential authority as an “official act”, Roberts’ ruling shields even the most questionable and potentially unlawful actions—such as Trump's attempts to pressure state officials and the Department of Justice to alter the outcome of the 2020 election. The Court’s decision allows Trump’s discussions with the Attorney General about election fraud to be categorized as an official act with complete criminal immunity. Moreover, the Court indicates that even Trump’s efforts to enlist the Vice President in these schemes could be considered official conduct, further complicating the government’s ability to prosecute.

Justice Sotomayor, in her dissent, powerfully critiques the majority’s ruling as an unprecedented expansion of executive immunity that is “atextual, ahistorical, and unjustifiable”. She emphasizes that the Constitution contains no provision granting or even hinting at presidential immunity from criminal prosecution. By inventing this immunity, Sotomayor argues, the Court has reshaped the office of the president in a way that undermines the principle of accountability. She highlights the Framers' clear intent—evident in the Federalist Papers and other writings—that the president, unlike a king, would be subject to the rule of law. Sotomayor also cites the Impeachment Clause, which specifies that an official impeached and convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”. She argues that this language inherently assumes the availability of criminal prosecution of elected officials, including the President, in addition to impeachment.

Sotomayor also raises the concern that this ruling effectively allows a President to engage in corrupt, even treasonous, acts without fear of criminal prosecution. The implications are profound: a president could, for instance, use official powers to undermine democratic processes, threaten state officials, or incite violence without legal consequence. She argues that the broad immunity crafted by the majority disregards historical precedents, including Nixon v. Fitzgerald, which never contemplated such a sweeping protection from criminal liability. Sotomayor contends that the majority misinterpreted Fitzgerald. The majority opinion in Fitzgerald stated that there was a balance between the interests of a private individual pursuing a civil suit and the potential dangers posed by the intrusion on the executive branch. In Fitzgerald, the Court determined that the public interest in a private lawsuit was minimal, thereby allowing the concerns about intrusion to outweigh this concern.

However, Sotomayor argues that this reasoning does not hold when applied to federal criminal prosecution, where the public interest is significantly greater. Additionally, the weight of the dangers of intrusion on the executive branch is reduced because federal criminal prosecutions have robust safeguards that are not found in civil suits. Thus, Sotomayor asserts that the key legal foundation invoked by the majority does not withstand scrutiny. Sotomayor’s dissent paints a dire picture of a president unbound by law and immune from accountability for using official powers in service of corrupt motives. This precedent, she warns, threatens the very integrity of democratic governance. Whether her warning proves prophetic remains to be seen, particularly in the aftermath of the upcoming election.

Sylvie Watts is a junior concentrating in political science and computer science. She is a writer for the Brown Undergraduate Law Review and can be reached at sylvie_watts@brown.edu.

Simon Juknelis is a first-year concentrating in computer science and history. He is an editor for the Brown Undergraduate Law Review and can be reached at simonas_juknelis@brown.edu.