Does a “Presumptive” Privilege Protect President Trump from Prosecution for Pressuring Pence? - Audio Posts

The Supreme Court’s “Presumptive Immunity” Standard

An especially baffling aspect of the Supreme Court’s decision in Trump v. United States is its concept of “presumptive” presidential immunity. The Court ruled that a president’s exercise of “core” powers is “absolutely” immune from prosecution and added that it might hold the exercise of “noncore” powers absolutely immune as well. For now, however, the Court held a president’s use of “noncore” powers only “presumptively” immune. Prosecution of a former president for using a noncore power to commit a crime can proceed if the government can show that this prosecution would pose “no dangers of intrusion on the authority and functions of the Executive Branch.” (I’ll call this standard the “no dangers” test.)

The words “no dangers” underscore the Court’s view that even a slight risk of inhibiting a legitimate exercise of presidential power outweighs the benefit of encouraging presidents to refrain from crimes. As the Court understands the Constitution, legal restraint vanishes when an outside chance of overdeterrence appears. Moreover, the Court required prosecutors to prove the absence of this outside chance without offering a hint of how they might do so.

The Court’s exclusive focus on over-deterrence and its disregard of the risk of under-deterrence are astonishing (especially in light of the facts alleged in Trump’s case), but I maintain in this article that the “no dangers” test isn’t as demanding as it seems. It allows well-founded prosecutions for serious crimes. These prosecutions do not pose a danger of intrusion on legitimate functions of the executive branch.

The “no dangers” test will determine, among other things, whether Special Counsel Jack Smith can present evidence that President Donald Trump pressed Vice President Mike Pence to exclude valid electoral ballots from the official congressional count on January 6, 2021. After ruling that “whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” the Court declared: “We therefore remand to the District Court to assess … whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

Contrary to widespread understanding, the Supreme Court did not hold former President Trump immune from prosecution for any of the crimes with which he is charged in the “January 6” case that reached the Court. These crimes are: conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing or attempting to obstruct an official proceeding, and conspiring against the right to vote and to have one’s vote counted. Indeed, the Court did not offer even a word about whether Trump might be immune from prosecution for any of these crimes. The Court’s decision concerned only whether Trump could be prosecuted for acts that were not alleged to be criminal—acts the indictment set forth only as the “methods and means” by which Trump committed the four crimes the indictment did allege. This aspect of the Supreme Court’s decision—its division of the crimes charged into component acts that weren’t themselves alleged to be crimes—has passed largely unnoticed, but I’ll explain why subdividing the evidence was inappropriate. One of the groups of factual allegations treated by the Court as though it were a distinct crime concerned Trump’s efforts to corrupt Pence.^[1]

Trump’s Efforts to Corrupt His Vice President

The Special Counsel’s October 2024 brief on presidential immunity and the grand jury’s superseding indictment allege that Trump:

knowingly made false claims of election fraud;
knowingly made false claims of Pence’s legal authority;
repeatedly badgered Pence for refusing to accede to his unlawful demands;
threatened to criticize Pence publicly, prompting Pence’s Chief of Staff to voice concern for the vice president’s safety to the Secret Service;
publicly declared “The Vice President and I are in total agreement that the Vice President has the power to act” when in fact they were entirely at odds;
publicly declared, “If Vice President @Mike_Pence comes through for us, we will win the Presidency”;
at the urging of advisors, struck remarks he had drafted for delivery to a crowd of his supporters on January 6 concerning the Vice President’s ability to alter the election results—but then reinserted these remarks;
told the crowd that “if Mike Pence does the right thing, we win this election” and reiterated this claim at least a half-dozen times, prompting the crowd to chant for Pence to return electoral ballots to the states;
announced that, if the crowd didn’t “fight like hell,” they wouldn’t “have a country anymore”;
asked the crowd to march to the Capitol;
learned that Pence had announced publicly that he had no power to judge the validity of electoral ballots;
learned that a violent riot at the Capitol had begun; and
tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” whereupon rioters chanted “Hang Mike Pence!”; “Where is Pence? Bring him out!”; and “Traitor Pence.”

The Special Counsel’s brief made news by revealing that, when an aide “rushed … to inform the defendant [that Pence had been taken to a secure location] in the hopes that the defendant would take action …, the defendant looked at him and said only, ‘So what?’” But the news accounts omitted the brief’s statement that the government would not use this evidence at trial. Apparently, the Special Counsel recognized that the President’s “so what?” qualified for “absolute” immunity.^[2]

The Supreme Court’s View of Trump’s Efforts to Corrupt Pence

Just as President Trump allegedly sought to draw his vice president into a criminal conspiracy, he sought to enlist Republican officials in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. In both situations, he sought to influence actions he had no authority to control, and, in both, his motives and his methods were the same. But the Supreme Court treated the two situations differently. It said that, although Trump’s efforts to corrupt state officials might be regarded as private “campaign conduct” and might therefore be subject to prosecution, his efforts to corrupt Pence were “official” and subject to prosecution only if they passed the “no dangers” test. In other words, the Court left open the possibility that importuning the state officials was unofficial, but it closed the door on the possibility that importuning the vice president was unofficial as well.

The Court noted that “when the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate.” It added that “the Vice President’s Article I responsibility of presiding over the Senate is not an executive branch function.” Similarly, it declared that “the Constitution commits to the States the power to ‘appoint’ presidential electors ‘in such Manner as the Legislature thereof may direct.’” It observed that “the President … plays no direct role in the process, nor does he have authority to control the state officials who do.”

As noted above, the Court said: “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” Yet the Court remanded “to the District Court to determine in the first instance … whether Trump’s [effort to influence the state officials] qualifies as official or unofficial.” The Court explained that Trump’s importuning of the state officials might have been “official” because it was “undertaken to ensure the integrity and proper administration of the federal election,” or it might have been “private” because it was “campaign conduct.” In the Court’s view, what might have been campaign conduct when its target was state officials was not campaign conduct when its target was Pence.

The Court offered no explanation of its distinction, but it did describe at length a vice president’s executive branch responsibilities. It noted that Woodrow Wilson’s vice president “presided over a few cabinet meetings,” that Franklin Roosevelt made the vice president a regular participant in cabinet meetings, that Vice President Nixon developed a procedure for relaying important matters to President Eisenhower when Eisenhower was seriously ill, that vice presidents serve as presidential advisors, and that, in the Senate, the Vice President advances the President’s agenda and breaks tie votes. Somehow, these responsibilities made “official” what otherwise might have been campaign conduct. And the Court appeared to be concerned that prosecuting Trump could pose a danger of intrusion on the executive responsibilities it described.

Upon learning of President Trump’s alleged abuse of his vice president, most people’s first thought probably would not be that prosecuting Trump could make future vice presidents less effective in cabinet meetings. But what the Supreme Court seemed to care about—and all it seemed to care about—was the future effective functioning of the executive branch.

The Special Counsel’s View of Presumptive Immunity

The Special Counsel’s brief declared: “Because the Executive Branch has no role in the [proceeding in which Congress certifies electoral ballots]—and indeed the President was purposely excluded from it by design—prosecuting the defendant for his corrupt efforts regarding Pence poses no danger to the Executive Branch’s authority or functioning.” It then devoted six pages to describing the procedure by which the United States chooses a president and the exclusion of the President from this process. It quoted the relevant constitutional provisions, Benjamin Franklin, James Madison, Alexander Hamilton, Joseph Story, James Kent, and Abraham Lincoln.

The point belabored by the brief was one the Supreme Court already had acknowledged, and the conclusion the brief drew from this point appeared to be a non sequitur. Although the Court recognized that Trump sought to influence Pence’s performance of his legislative duties, it said that prosecuting Trump for this conduct might nevertheless pose a danger of intrusion on the authority and functioning of the Executive Branch.

The Special Counsel’s brief addressed this possibility only in a short paragraph, and this paragraph said only “ain’t so”:

[A]pplying a criminal prohibition to the discrete and distinctive category of official interactions between the President and Vice President alleged in this case would have no effect—chilling or otherwise—on the President’s other interactions with the Vice President that implicate Executive Branch interests. The President would still be free to direct the Vice President in the discharge of his Executive Branch functions ….

The Supreme Court’s allocation of the burden of proof made it difficult for the Special Counsel to say more. It is difficult to show that prosecution cannot affect the functioning of the executive branch before anyone has suggested a way in which prosecution might affect the functioning of the executive branch.

The argument on the applicability of the presumptive immunity standard has not really begun. It remains to be seen whether Trump’s lawyers can come up with some conceivable effect on executive-branch functioning.

The Special Counsel’s emphasis on the fact that Trump sought to influence Pence’s performance of legislative duties could be misleading. The next section of this article will show that, even if Trump had sought to influence Pence’s performance of his executive-branch responsibilities, the presumptive immunity standard would not block Trump’s prosecution. (Whether Class A immunity—“Absolute” immunity—would prevent Trump’s prosecution for ordering Pence to take unlawful executive action is a different question, one that the final section of this article will address briefly.)

Making Sense of the Presumptive Immunity Standard

Some observations:

1. The “no dangers” test looks forward, not backward. The Justice Department has determined that a president may not be prosecuted while he remains in office. The issue is whether the prosecution of a former president might affect the work of later presidents or other executive officers.

2. The standard refers only to adverse effects. When prosecuting a former president would do no more than deter later presidents from committing crimes, that effect would supply a good reason for permitting the prosecution, not a reason for blocking it. The words “danger” and “intruding” don’t refer to beneficial effects.

3. The task of proving that no danger exists sounds daunting. Physicists speak of “the butterfly effect,” the possibility that the fluttering of a butterfly’s wings in Brazil can cause a tornado in Texas. But the chance of improper intrusion on executive authority or functioning presumably must be more than de minimis.

4. When the standard speaks of “intrusion on the authority and functions of the Executive Branch,” the word “functions” seems more important than the word “authority.” If a former president had authority to do what he did, any statute purporting to restrict what he did would be unconstitutional. If prosecuted, the president would have a defense. In other words, immunity is not necessary to safeguard executive-branch authority. Several doctrines and practices give presidents the benefit of doubt on questions of their authority. The principal function of “presumptive” immunity is therefore to safeguard the proper functioning of the executive branch.

5. Although the Supreme Court did not elaborate the meaning of its standard, it set forth its reasons for approving presidential immunity, and these reasons reveal the sort of intrusion it had in mind. The Court spoke of the:

likely prospect of an Executive Branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next. For instance, Section 371—which has been charged in this case—is a broadly worded criminal statute that can cover “‘any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.’” … Virtually every President is criticized for insufficiently enforcing some aspect of federal law (such as drug, gun, immigration, or environmental laws). An enterprising prosecutor in a new administration may assert that a previous President violated that broad statute. Without immunity, such types of prosecutions of ex-Presidents could quickly become routine. The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid.

The Court emphasized a president’s need to “execute the duties of his office fearlessly and fairly” and “the ‘bold and unhesitating action’ required of an independent Executive.” The evils with which it was concerned were overdeterrence and politically motivated prosecution (sometimes called “lawfare”). “Lawfare” is objectionable regardless of its effect on executive-branch functioning, but, because this sort of prosecution does pose a danger of intrusion on the authority and functions of the executive branch, the presumptive immunity standard bars it along with other prosecutions that might make future presidents too cautious.

6. The kinds of prosecutions that might make future presidents too cautious include: prosecutions for technical violations of regulatory statutes, prosecutions for offenses that aren’t normally prosecuted, prosecutions based on flimsy evidence, and—the Court’s example—prosecutions for violating malleable statutes that prosecutors can shape to cover otherwise appropriate conduct the prosecutors deem corrupt.^[3]

7. Prosecutions that do not pose a danger of making future presidents too cautious are: all well-founded, non-discriminatory prosecutions for serious offenses.^[4] When a former president has been charged with a serious crime on the basis of substantial evidence, a law-abiding successor would have no reason to apprehend “that criminal penalties may befall him upon his departure from office.” The Court’s “no dangers” test requires a well-founded prosecution for a serious crime, and that’s all it requires. This standard is not as intractable as it may seem.

Could the Supreme Court have doubted that the January 6 prosecution of former President Trump is a well-founded prosecution for a serious crime? Might the Court have believed that a law-abiding successor would view the prosecution of Donald Trump with trepidation that he might be next?

Recall that the Court did not consider Trump’s prosecution as a whole but instead divided the evidence of an overarching criminal conspiracy into chunks and assessed each chunk as though it had been charged as a separate crime. That was an inappropriate way to assess the risk of overdeterrence because it was not the way the Special Counsel had charged Trump’s case and was not the way later presidents and everyone else would understand this case. A future president would not say to himself: “If one part of the evidence of a scheme to steal an election were spun off and charged as a separate crime, I’d be nervous, so I’d better play it safe and abandon my plans to protect the American people.”

Even after the Court’s subdivision of the evidence, each part, viewed separately, seems well supported. But the Court’s disparaging reference to Section 371 (proscribing conspiracies to defraud the United States) suggests that perhaps the Special Counsel should not have drawn his charges entirely from the federal prosecutor’s standard tool kit. Including an easily understood, obviously serious, violent, and readily provable charge of giving aid and comfort to an insurrection would have made it more difficult for the Court to speak of the danger of intrusion on the legitimate authority and functions of the executive branch.

A Note on “Absolute” Immunity

When the Supreme Court held that a president’s exercise of a “core” power is absolutely immune from prosecution, it indicated that the number of core presidential powers is small. Only powers that give the President a “conclusive and preclusive” authority whose exercise neither Congress nor the courts can limit or review are “core.”

The Court drew the concept of “preclusive” presidential power from Justice Robert Jackson’s much admired concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer. That opinion explained (better than the majority opinion in Youngstown) why no presidential power justified President Truman’s seizure of steel mills during the Korean war. Jackson observed: “The example of … unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III.” Because the Framers were determined not to duplicate that power, neither the commander-in-chief power nor the power to take care that federal laws be faithfully executed was sufficiently “preclusive” to justify Truman’s action.

But the apparent scope of absolute immunity burgeoned like the eggplant that ate Chicago when the Court treated as “absolutely” immune any evidence that Trump had ordered Acting Attorney General Jeffrey Rosen to send letters to state officials falsely claiming the existence of significant evidence of voter fraud. (Trump had threatened to fire Rosen if he refused to comply with this demand and had desisted only when he realized that carrying out his threat would lead to mass Justice Department and White House resignations.) According to the Court, the President’s conduct was absolutely immune because he had exercised three core powers—the power to decide which crimes to investigate and prosecute, the power to discuss the exercise of this power with Justice Department officials, and the power to remove executive officers whom the President had appointed.

Under the ruling in Trump, the existence of presidential immunity appears to depend on whom a criminal president has attempted to enlist as his accomplices. When Trump lied to induce state officials to join his conspiracy, the Court said that his conduct might be private campaign conduct and subject to prosecution. When, however, Trump instructed his acting attorney general to tell the same lies to the same state officials, the Court ruled that his conduct was not private. It was now official, core, and absolutely immune. The fact that the President sought his own private and political advantage did not matter. The Supreme Court wrote: “In dividing official from unofficial conduct, courts may not inquire into the President’s motives.” A president who has used an official power to accomplish personal objectives has acted “officially,” and, if that power is a “core” power, the crime is laundered and he is home free. Instructing a vice president acting as president of the senate to join in stealing an election is not as beneficial as attempting to enlist an attorney general, but it does afford the President presumptive immunity and therefore may be more advantageous than attempting to enlist state officials.

To put the point differently, pressing a state official to participate in a presidential crime does not launder the crime at all. And pressing a vice president to participate while acting as president of the senate may give the crime only a pre-wash. But pressing an attorney general to commit the crime launders the crime absolutely. The Court’s apparent message to future presidents is that, rather than commit crimes themselves, they should direct executive-branch officials to commit them. A second lesson is that a president should appoint only executive-branch officials who are willing and anxious to commit crimes (Jeff Clarks, not Mike Pences or Jeff Rosens).

What if Trump had directed Vice President Pence to send fraudulent letters to state officials? The President’s order then would have called for executive rather than legislative action by the Vice President. But the Vice President’s position in the executive branch differs from the Attorney General’s. Trump had no authority to fire Pence, and the letters he demanded might have concerned something other than which crimes to investigate and prosecute.

What if Trump had demanded fraudulent letters from others in the executive branch—the Director of the FBI, the Secretary of Agriculture, and a file clerk in the Department of Transportation? Would the concept of a unitary executive bring every criminal instruction to an executive-branch employee under the umbrella of a core power? What if the President sought fraudulent letters from members of the Federal Election Commission, a supposedly independent regulatory agency?

Our wait for answers to these questions may be long. The United States existed for two-and-a-third centuries without prosecuting a former president for a crime, and determining the breadth of absolute presidential immunity may remain unnecessary for another 235 years. The issues that remain open in Trump’s case mainly concern separating private from official conduct and applying the “no dangers” test to conduct determined to be “noncore official.”

Even when artificially separated from the crimes actually charged and envisioned as a separate offense, the prosecution of President Trump for pressuring Vice President Pence to refuse to count valid electoral ballots would be a well-founded prosecution for a serious offense. Applying the “no dangers” test to this hypothesized prosecution should be easy.

In a judicial first, the Court held that acts can be immune not only from criminal prosecution and from civil liability for damages but also from use in evidence. The Court seemed not to realize that its entire opinion was, in truth, devoted to the question of what evidence of the crimes actually charged would be admissible. Similarly, Justice Barrett, who dissented from the Court’s evidentiary ruling but joined the remainder of the majority opinion, seemed not to notice that the portions of the majority opinion she joined also concerned, at bottom, the admission of evidence. ↑
If the Special Counsel recognized that this evidence cannot be used, reciting it in his brief seems improper. When immunized evidence cannot be used against a former president at trial, it should not be used against him at all. And presenting inadmissible evidence of politically salient facts for the purpose of informing the public about these facts shortly before an election would depart from the Justice Department’s appropriate nonpartisan role. (Some commentators have criticized the Special Counsel for filing any brief shortly before the election, but, as Andrew Weissmann and Ryan Goodman have shown, that criticism is misguided.) ↑
Even the expansive immunity approved by the Supreme Court may not do much to protect former presidents from malicious prosecution. It does not block the vindictive prosecution of a former president’s unofficial associates and of family members alleged to be part of his “crime family,” and it does not block the vindictive prosecution of a former president himself for unofficial conduct including activity preceding and following his time in office and activity on the campaign trail. Immunity also does not block the vindictive filing of other charges and the litigation that may be necessary to apply the Court’s labyrinthine standards in one or more courts before a claim of immunity is upheld. ↑
One indication of whether an offense is “serious” is whether all or almost all known violators are prosecuted, but some serious offenses are rarely prosecuted because they are rarely committed. ↑