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Trump v. U.S.: Has the Supreme Court Made the Presidency More Dangerous?
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TRUMP V. U.S.: HAS THE SUPREME COURT MADE THE PRESIDENCY MORE DANGEROUS?


A view of the facade of the U.S. Supreme Court building in Washington, DC. Will
Dunham/Reuters

The high court’s decision could allow future U.S. presidents to commit grave
abuses of power with impunity, with serious implications for U.S. foreign policy
and national security.

Expert Brief by David J. Scheffer

July 10, 2024 2:55 pm (EST)

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A view of the facade of the U.S. Supreme Court building in Washington, DC. Will
Dunham/Reuters
Expert Brief CFR scholars provide expert analysis and commentary on
international issues.

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?

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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.

More on:

International Law

United States

Rule of Law

U.S. Supreme Court

Trump

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.

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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.

More on:

International Law

United States

Rule of Law

U.S. Supreme Court

Trump

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.




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