But the Supreme Court’s momentous decision Monday granting broad immunity to past presidents, including former President Donald Trump, is a little harder to square with what the justices have previously said.
In their confirmation hearings over the past two decades, Republican-appointed Supreme Court justices have repeatedly given Trump and other presidents broad immunity from criminal prosecution for their official duties, assuring the American people that no one, not even the president, is “above the law.”
Their comments did not specifically relate to the possibility that the president could be indicted for a crime, although at times they did.
Perhaps the most direct example comes from Judge Brett M. Kavanaugh, who once wrote a law review arguing that criminal prosecutions of a president should be postponed until after he leaves office — a topic that was clearly of interest to him when he was nominated by a legally risky Trump in 2018.
During his confirmation hearing, Kavanaugh emphasized that his law review article was a practical, not a constitutional, argument: It wasn’t saying that the Constitution doesn’t allow for the indictment of a sitting president, but that Congress should pass a law codifying that idea.
But in making that point, Kavanaugh spoke as if presidential immunity was an almost unthinkable, or at least unthinkable, idea.
“I don’t think anybody has ever said that a president is immune from civil or criminal lawsuits,” Kavanaugh said, “so even to think of the word immunity in this case is misleading.”
He added, “But immunity is not the right word and I don’t think anybody thinks about immunity. Why? Nobody is above the law. And that is really the fundamental principle of the Constitution, equal justice under the law.”
Kavanaugh repeatedly cited Federalist No. 69, which provides that the president “shall be subject to prosecution and punishment within the ordinary framework of law.”
A year before Kavanaugh’s confirmation hearing, Supreme Court Justice Neil M. Gorsuch was asked whether a president could be prosecuted for waterboarding people. He initially said he couldn’t speculate on such a case, until Sen. Lindsey Graham of Lausanne himself said, “The president is not above the law.”
“No one is above the law,” Gorsuch agreed. “No one.”
In 2006, then-Senator Patrick J. Leahy (D-Vermont) asked current Supreme Court Justice Samuel A. Alito Jr. whether a president could authorize a murder, presumably committed by intelligence agencies, and avoid prosecution.
“I don’t think that the president or anyone else can give anyone the power to ignore constitutional law,” Alito said.
Alito did not explicitly say whether the president could be prosecuted for this, but added elsewhere that “no one in this country is above the law — not the president, not the Supreme Court. Everyone must obey the law, and that means the United States Constitution, and that means the laws made under the United States Constitution.”
The phrase “above the law” was indeed used frequently during confirmation hearings for each judge, when questions about presidential power were raised, but often in the context of conflict between the executive branch and the other branches of government.
But justices have repeatedly sought to treat the president as an ordinary person in the eyes of the law.
Current Supreme Court Justice Amy Coney Barrett, in answering questions about the president, said three times that no one is “above the law.”
“Senator, I believe that under our system, no one is above the law, including the president,” current Supreme Court Chief Justice John G. Roberts Jr. said in 2005. “The president is absolutely bound by the law, the Constitution and the statutes.”
A colleague of those current justices, Justice Sonia Sotomayor, said in a dissent on Monday that they had, in effect, broken their promise.
She said the ruling “makes a mockery of the fundamental principle underlying our Constitution and political system: that no one is above the law.”
“In all exercises of public power, the President is now a king above the law,” she wrote. She suggested that the ruling potentially gives a president the power to order an assassination or military coup against his own government, so long as he is acting in his official capacity. As the majority made clear in its opinion, that test is not clearly defined, and a separate ruling would be required in almost every case after the fact.
The majority justices tried to counter this logic in their decision, arguing that granting the president immunity does not put him above the law. They sought to distinguish between the president’s informal capacity (whose actions are not immune) and his capacity as leader of the executive branch.
“But unlike anyone else, the president is a branch of government, and the Constitution bestows upon him sweeping powers and duties,” the majority wrote. “Given that reality, allowing the president to enforce those powers, as the Constitution’s Framers anticipated, does not put the president above the law but preserves the basic structure of the Constitution on which those laws are based.”
But there’s no question that the courts have said that the president enjoys a degree of immunity from criminal prosecution that other Americans do not enjoy. While the justices can argue that they are interpreting the law to give that immunity to government entities rather than individuals, in practice that means the president cannot be criminally prosecuted for anything that other Americans could be prosecuted for.
Justice Ketanji Brown Jackson, in a more measured opinion than Justice Sotomayor’s dissenting opinion, sought to emphasize this point.
“In the majority’s view, while all other citizens of the United States must conduct their affairs and live within the bounds of criminal prohibitions, the President cannot be made to do so. The President must sometimes be exempt from the dictates of the law, depending on the nature of his conduct,” Jackson wrote.
“Indeed, the majority believes that the president, unlike anyone else in our country, has relatively free reign to commit criminal acts in the performance of his official duties,” she added.
