Trump v. U.S.: Has the Supreme Court Made the Presidency More Dangerous?

The Supreme Court’s ruling in Trump v. the United States has unmoored presidential policymaking, including in foreign affairs, from the rule of law. The impact of this epic judgment will likely reverberate for years in the nation’s domestic and foreign policies.

What did the Supreme Court decide in Trump v. United States?

The case before the Supreme Court centered on the August 2023 indictment [PDF] charging former President Donald Trump with violating numerous federal criminal statutes when he sought to overturn the results of the last presidential election prior to leaving office on January 20, 2021. Part of the indictment covers Trump’s alleged role in the January 6 insurrection on Capitol Hill that year.

Trump’s appeal to the Supreme Court revolved around distinguishing official from unofficial acts of a president and the scope of a president’s immunity from criminal prosecution after leaving office. The majority ruled that a president has absolute immunity from criminal liability for conduct “within his exclusive sphere of constitutional authority.” They further found that the president enjoys “presumptive immunity” for “acts within the outer perimeter of his official responsibility…unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” Not surprisingly, the court found that a president enjoys no immunity under federal criminal law to commit unofficial acts.

As to the specific allegations against Trump in the government’s case, the court ruled that his alleged efforts to pressure the Justice Department to conduct sham investigations into election fraud were actions taken within his exclusive constitutional powers and therefore absolutely immune from prosecution.

The majority found that his attempt to pressure Vice President Mike Pence to take certain acts in connection with the electoral vote certification process involved official conduct, and were at least presumptively immune from prosecution. The court reasoned similarly regarding Trump’s controversial tweets and public address in the lead up to the violent march on Capitol Hill. The majority left it to the lower courts to determine whether Trump should receive immunity for these acts.

What does the ruling mean for U.S. democracy and the electoral process?

The immediate consequence of the ruling—and of the monthslong delay in delivering it—is that the Supreme Court has deprived Americans voting in the November 2024 presidential election a jury trial to determine whether one of that race’s candidates violated federal criminal law in connection with the 2020 election.

If Trump becomes the next president, he could shut down the entire prosecution against him by using his executive authority (regardless of the immunity judgment). If he loses the election in November, his trial will likely plod through the federal judiciary with appeals over what constitutes an official or unofficial act and whether presumptive immunity survives.

Remarkably, the court’s ruling would permit a future president to ask an executive branch official to violate a federal criminal statute in connection with elections [PDF], and it would grant that president at least presumptive immunity for those actions. A president could thus be emboldened, for example, to weaponize the Justice Department in an attempt to overturn state vote tallies and facilitate fraudulent elector rolls for the Electoral College.

However, the court did not extend any immunity to the vice president or other executive branch officials, so they would remain subject to federal criminal prosecution, even if they were to break the law at a president’s behest. Without a presidential pardon, these officials could be indicted after the president leaves office. For any federal lawyers involved in criminal conduct, state bar associations could disbar them.

What impact could the ruling have on the president’s powers in foreign policy and national security?

The court has deeply undermined the United States’s credibility in promoting the rule of law overseas, and it may have opened the door for U.S. presidents to commit criminal acts in foreign policy or national security without legal consequence. Under the Constitution, as the court’s ruling confirmed, presidents are granted various powers in the realm of foreign relations, including commanding the armed forces, making treaties, recognizing foreign governments, and overseeing intelligence gathering.

The court’s ruling gives wide room for presidents to commit abuses previously checked by assumed restraints, particularly under federal criminal law. These abuses include:

• ordering the military to invade a foreign country and commit genocide against a minority religious group;
• ordering the military to commit major war crimes and torture against a civilian population in an enemy nation during an armed conflict;
• instructing federal officials to falsify documents required for the sale of U.S. weapons and munitions to a foreign purchaser under the Arms Export Control Act;
• sharing highly classified national security information (and making no attempt to declassify it) with a foreign leader; and
• ordering the U.S. Border Patrol to massacre hundreds of sleeping migrants camped on the U.S.-Mexico border.
   

While in office, a president who had engaged in any of the above acts could still, of course, be impeached by Congress for “high Crimes and Misdemeanors.” Military personnel and other executive branch officials who comply with or aid the president in these actions would risk prosecution under the Uniform Code of Military Justice or the federal criminal code. As noted earlier, they could also seek presidential pardons for their illegal conduct. But military discipline guided by the rule of law would be dangerously disrupted.

Will the ruling have any implications for the U.S. in international legal forums?

The ruling has no practical effect for International Court of Justice (ICJ) cases in which the United States would be a party. The ICJ adjudicates only state responsibility, and thus a president’s immunity under U.S. law would not affect ICJ deliberations.

If a U.S. president (sitting or former) were to be investigated by the International Criminal Court (ICC), whether or not the United States is party to the Rome Statute [PDF] that established the ICC, it would not recognize the immunity granted to them by the Supreme Court. Article 27 of the Rome Statute explicitly denies the protection of immunities granted to any official.

The ICC affords any nation the initial opportunity to investigate and decide whether to prosecute individuals accused of any of the offenses named by the Rome Statute (genocide, crimes against humanity, war crimes, aggression) and in the result avoid ICC action. However, if a sitting or ex-president were to invoke immunity to block a domestic inquiry, it would ironically expose them directly to an ICC investigation.

This work represents the views and opinions solely of the author. The Council on Foreign Relations is an independent, nonpartisan membership organization, think tank, and publisher and takes no institutional positions on matters of policy.

This publication is part of the Diamonstein-Spielvogel Project on the Future of Democracy.