Trump v. US: Anti-canon, or Anti-hero?

The controversial immunity decision has something to offer its detractors.

Trump v. United States is so intensely criticized that, in some quarters, it is at risk of being included in the anti-canon. It is alleged to be lawless, partisan, and catastrophically harmful. The case has even pulled off the neat trick of alienating both legal formalists and critics of Trump—two overlapping groups that together make up most of legal culture. Few are left to defend the decision.

I myself am no great admirer of the Court’s ruling, which is likely wrong in at least some important respects and often quite confusing. But I do regard the decision as legally reasonable, judicially responsible, and possibly beneficial.

What moves me to write this post is a sense that the case’s critics are being counterproductive in moving the decision toward anti-canonicity. The case has something, much in fact, to offer its detractors. It may not be a hero in its critics’ story of the law, but neither should it be counted as a villain.

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1. Functionalism. Many legal formalists, such as originalists, have impugned the decision on the ground that relies on functional considerations. For example, the ruling doubts that federal or state prosecutors can be trusted not to bring partisan prosecutions against former presidents. This kind of argument can seem “made up,” inexpert, and illegitimate when undertaken by courts. In addition, the Court does not offer any deep historical foundation for the immunity it describes. While such indictments of Trump often come from the right, our ongoing legal realignment has lately generated a resurgence in formalism on the left. Yet functionalism remains a reasonable, widely employed approach to judicial decision-making. Even more importantly, leading cases in the area of official immunity—indeed, virtually all of them, in my view—employ patently functionalist reasoning. So the Trump case’s methodology largely comports with longstanding practice.

2. Hypocrisy. Also noticing the case’s functional quality, many critics argue that the majority justices were inconsistent, hypocritical, or outcome-oriented in sloughing off their formalism. One might ask why Justice Gorsuch, for instance, signed on to an opinion that is substantially detached from constitutional text and history. Yet few if any judges exhibit methodological purity, and no Court majorities do so—at any point in history. One reason for this pattern is the felt need to form majority opinions. To wit, Trump’s author, Chief Justice Roberts, is no doctrinaire originalist, yet he and Gorsuch may have had good reason to help form an opinion for the Court—a possibility further explored below. At any rate, the decision’s methodology did find substantial support in both institutional and personal precedents. Again, case law in this area is highly functionalist, and the justices in the majority have long followed precedents grounded in functional logic in the area of official immunities, with qualified immunity being a central example. Even Justice Thomas, an arch formalist, recognizes a role for precedent (though not nearly enough of a role to satisfy his critics). Maybe some justices, such as Justice Gorsuch, are not living up to their espoused formalism when it comes to official immunities in general. Criticism along those lines may well be warranted and beneficial. At the same time, following the logic of functional case law on immunity is hardly the worst thing that someone could accuse a judge of doing. That leads to the next point.

3. Precedent. Some critics argue that the decision was wrongheaded given then-extant case law. These objections may be well-founded, but they cannot sustain a strong charge of incompetence or bad faith. As already noted, extant immunity case law was quite functionalist and fairly supportive of official immunity, including presidential immunity. To give just one example, perhaps the most relevant precedent was Nixon v. Fitzgerald, which established a presidential immunity from civil suits based on official acts while in office. A threat of criminal prosecution is at least as harmful to executive decision-making as a threat of civil litigation; so it is plausible to extend Fitzgerald’s rule to criminal prosecutions like the one in Trump. The main way to distinguish Fitzgerald is to argue that prosecutors exhibit a degree of restraint and wisdom, thereby promoting key public interests in ways that civil plaintiffs will not. However, that distinction had been cast into doubt by the time of Trump, and it only seems more questionable today. The risk of partisan prosecutions has become very real. By comparison, perhaps the leading precedent cutting against the majority opinion was Clinton v. Jones, which rejected a limited presidential immunity for civil liability relating to unofficial conduct before taking office. This precedent is less pertinent than Fitzgerald, for it involved not just civil suits but also pre-officeholding conduct. Moreover, Jones was not a well-received decision. The case made the functionalist claim that the civil litigation it allowed would not have an adverse effect on the president’s ability to perform his duties. In fact, however, the litigation went on to contribute to a series of distracting investigations involving then-President Bill Clinton, culminating in his impeachment. For that reason, Justice John Paul Stevens, the author of Jones, wrote in his memoirs: “numerous commentators have rather enthusiastically suggested that only the village idiot could have authored” the claim the Court had made. To be clear, Stevens did not express regret about his opinion on the merits. However, a doubly distinguishable case whose premises were arguably falsified and which caused its author to be viewed as a “village idiot” is not the strongest basis for decision.

4. Unclarity. Much of the decision has the look and feel of pea soup. The centerpiece of the Court’s holding is a tripartite framework involving: core official action, non-core official action, and unofficial action. It is unclear what kinds of action fall within which category, as the Court made evident by engaging in a lengthy, explicitly “fact specific” assessment of the record in the Trump case itself. Quoting another recent case, the Court itself expressly admitted that the analysis “may prove to be challenging” and that there may not be “a clear line between” relevant categories. Justice Jackson’s dissent underscored the majority’s confessions of indeterminacy before concluding, “I could not agree more.” The result of this murky test was a remand with much work for the trial judge to undertake in the first instance. Moreover, the Court reserved just what kind of protection follows from being slotted into the middle category of non-core official action. For all these reasons (and still others), it was unclear what the ultimate effect of the ruling would be on the facts at hand, to say nothing of other fact patterns. This kind of legal indeterminacy is often frustrating for law students, litigants, and judges. But uncertainty is also a critical tool that courts and other legal actors regularly employ for good reasons and to good effect. In Trump, a healthy dose of precedential indeterminacy had genuine advantages. To give just one example, the Court was able to send a signal immediately while waiting to flesh out its holding until it could benefit from greater practical experience. That flexibility was valuable, given the unprecedented and novel nature of prosecutions directed at ex-presidents.

5. Imprudence. Taking the case’s functional logic on its own terms, some argue that the case has had, or will have, catastrophic effects. The main version of this argument, featured in Justice Sotomayor’s powerful dissent, is that the president will feel much less inhibited, and therefore act much more lawlessly, than in the past. Whether the case has had this effect is hard to assess, in part because there are so many influences and potential checks on presidential behavior. As Jack Goldsmith has put it, a president’s “decisional calculus in the face of criminal law might not change much after the decision” in Trump. One particularly important reason to doubt any large effect has already been noted: the case’s holding is quite indeterminate. Indeed, Trump himself could still have been prosecuted after the decision in Trump—as many if not all commentators recognized at the time. So the case does not hand a “get out of jail free” card to presidents. Had this ruling been on the books in the 1970s, for instance, former President Nixon may very well have wanted or needed the pardon that he received from President Ford. Moreover, even some critics of the case recognize that the ruling has had at least one very large benefit—namely, protecting now ex-president Joe Biden from himself suffering a partisan prosecution. Perhaps, then, the ruling has already slowed or halted a downward cycle of partisan recrimination.

6. Seal Team 6. Many critics, including the dissenters, have asserted that the Court would grant immunity to a president who ordered Seal Team 6 to assassinate a political rival. Fanning the flames of this criticism, the Court did not directly address this salient hypothetical, but rather noted generally that the dissent was engaged in hyperbole. The majority’s reply is plausible. Dissenting opinions often exaggerate the meaning of majority opinions; doing so is a standard part of a dissenter’s rhetorical toolkit. Majority opinions, meanwhile, frequently exhibit caution in declining to rule on hypotheticals pressed by the dissent. We might then ask: Does the majority opinion in fact resolve the hypothetical posed? No. To give just one reason why not, the Court states at a key juncture: “the immunity we have recognized extends to the ‘outer perimeter’ of the President’s official responsibilities, covering actions so long as they are ‘not manifestly or palpably beyond [his] authority.’” The internal quotations there are to a DC Circuit opinion authored by Chief Judge Srinivasan. One might have thought it plausible, if not common ground for the entire Court, that an order for the military to engage in a political assassination would be “manifestly” and “palpably” beyond the president’s lawful authority. At risk of understatement: presidents do not traditionally order the extrajudicial killing of fellow citizens within the United States. Consider by comparison the majority’s conclusion that the president has inherent constitutional authority to communicate with the DOJ: discussions involving the president and the DOJ are a traditional feature of the Executive Branch’s work. In addition, the imagined military action would deprive persons of life without due process or judicial oversight, whereas the DOJ typically operates through courts. Even if the assassination were an official act, moreover, it would seem to exceed any exclusive and preclusive presidential power, given longstanding statutory regulations of the domestic use of military force; and it is far from evident that prosecutions for such an action would pose “dangers of intrusion on the authority and functions of the Executive Branch,” as may be required to sustain a claim of presumptive immunity. This overall line of thought calls to mind qualified immunity—a doctrine that came up explicitly in the oral argument discussion of the Seal Team 6 hypo. In a colloquy in which Justice Sotomayor mentioned “qualified immunity,” for instance, Justice Alito noted: “one might argue that it isn't plausibly legal to order SEAL Team 6” to engage in assasination. Having said all that, there are different ways to characterize an asserted presidential power regarding use of the armed forces, and some characterizations might support a finding of immunity. And the entire idea of making “officialness” turn in part on legal authority might seem misguided (even if one or more justices endorse it). So, here as elsewhere, the immunity holding’s unclarity is a reasonable basis for criticism, as well as praise.

7. Delay. Moving away from the actual decision, critics object to the Court’s delay in deciding the case, which allegedly helped Trump prevail in the presidential election later that year. Yet the Court followed a regular process for deciding cases. The matter proceeded expeditiously in the lower courts, and the justices issued their opinion in the same term that the court of appeals reached a decision. That timeline is not abnormally slow and was arguably even speedy. The Court did decline to grant certiorari before judgment in the court of appeals, as requested by the special counsel; but that delay, not terribly large, was eminently reasonable given the normal desire to have an appellate opinion to review before opining on such an important matter. And the lower court opinion did in fact inform the Court’s consideration and final ruling. Criticisms about the Court’s delay may also be problematic in themselves, insofar as they assume or posit that the justices should have moved with extraordinary dispatch to ensure a trial before the 2024 presidential election. Such a desire would itself be impugnable as partisan and illegitimate. Compounding this problem, it is hard to imagine that Trump could have pursued his rights to appeal any conviction before the election—unless that appellate process, too, were dealt with in a hasty fashion. Finally, the asserted political ramifications of a trial are speculative at best. Many critics of Trump argued that his being repeatedly indicted would hamper his electoral chances, or at least that his New York conviction would do so. Needless to say, those predictions proved unfounded. Partly because many Americans viewed the Trump prosecutions as partisan, those prosecutions (and one conviction) did not jeopardize, and may have enhanced, his political position.

8. Unity. The case could also be criticized for creating a false sense of unity, when the majority justices were actually fractured in their views. The evidence of underlying fracture includes some notable threads of formalist reasoning in the ruling, particularly its discussion of the president’s assertedly exclusive, preclusive powers. As noted above, one of the case’s few determinate components involved a highly controversial holding regarding the president’s Article II powers to communicate with officials in the Department of Justice. This aspect of the ruling drew on case law regarding presidential powers that the majority justices had long supported—namely, powers to supervise prosecutors and to remove certain executive officers. These claims were probably included to point toward a rationale amenable to the most formalist justices, like Justice Gorsuch. Perhaps Gorsuch or other justices should have followed Justice Barrett’s lead and partly broken off from the majority opinion, rather than work out a compromise ruling. That criticism (like many others) strikes me as plausible and well-taken. But the ethics surrounding those sorts of opinion-writing tradeoffs are themselves unclear and debatable. Many judges and commentators see great virtue in working out an opinion of the Court, though such decisions are often muddled. Courts accordingly issue murky, compromise decisions all the time. In Trump itself, the majority justices were probably concerned that the district court’s task on remand would be unmanageable if there were no opinion of the Court to work from.

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You may now be wondering: Ok, maybe Trump was reasonable, even if wrong—so what? The answer, I think, is that a more balanced understanding of Trump can help many of the critics who have hitherto assailed it, as well as other people concerned about the threat that partisan politics now poses for the rule of law. To put the point crassly, the Court’s immunity holding does not neatly point in either a pro- or an anti-Trump direction. Mistakenly thinking otherwise tends to obscure what the justices were really doing (or trying to do), as well as what the precedent can be taken to mean today.

For those of us troubled by the slide toward increasingly aggressive uses of executive power—especially today, but also over a period of years, including 2020 to 2024—the Trump case offers an example of how federal courts might intervene to preserve the rule of law. Yes, the conservative justices advanced their long-time vision of strong executive power. But the case also signals a willingness to police the justice system in a time of extraordinary partisanship and political polarization. And the value of that signal has only become greater since the case was decided last summer.

The Court’s intervention in Trump was limited, and somewhat tentative. The results were clumsy or cross-cutting in various ways. And the decision certainly did not come close to solving all relevant problems. But one might nonetheless root for this anti-hero, a troubled and flawed case that may yet stand for something vitally needed today.