There are many reasons why it is important to know whether Donald Trump is immune from indictment and prosecution as a sitting president, even if special counsel Robert Mueller decides not to go that route. While the following does not provide a bottom line as to whether the president has immunity, it presents one piece that may help resolve that ultimate puzzle. Most analyses of this topic, including a lengthy opinion by the Justice Department’s Office of Legal Counsel in 2000, overlook a Supreme Court case in which five Justices apparently favored the idea that the President can be subject to criminal prosecution. (The other four Justices did not exactly disagree either.)

The missing analysis of Nixon v. Fitzgerald (1982)

In Nixon v. Fitzgerald, the Supreme Court held that a President cannot be sued for civil damages involving actions taken within his official duties. The case required the Justices to explore the scope of presidential immunity from judicial procedures. The key question is what the Justices said about whether a President is immune from criminal prosecution. Of course for Trump, any actions preceding the presidential election would not be official acts within the scope of his duties, and he’d have a difficult time claiming that a President committing a crime while in office (e.g., perjury) is within the scope of official duties.

How does one get to five Justices?

1. Four Justices in dissent:

Justice Byron White, in writing a dissenting opinion joined by three other Justices (Brennan, Marshall, and Blackmun), stated that a president is not immune from criminal prosecution:

“But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar ‘Indictment, Trial, Judgment and Punishment, according to Law.’ Art. I, § 3, cl. 7.”

2. Chief Justice Warren Burger in a concurring opinion:

Here’s the most important point. Chief Justice Burger (a fifth vote for the majority), in his opinion concurring with the majority, appeared to agree with the dissent. He wrote:

“The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official dutiesAnte at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.[fn3]”

[fn3] “In United States v. Brewster, 408 U. S. 501 (1972), we held that the Speech and Debate Clause does not prohibit prosecution of a Senator for accepting a bribe designed to influence his legislative acts.”

Fitzgerald was obviously a case about (1) civil liability for (2) official acts, and thus Chief Justice Burger could be limited to saying only that a president is not immune from civil suits for acts that are outside of his official duties. That narrow reading is a stretch, if not unworkable, interpretation of what he said. Chief Justice Burger was obviously also making a distinction between civil suits and criminal prosecutions. His reference to the availability of criminal prosecution for taking a bribe indicates that point strongly.

3. The majority opinion

For what it’s worth, the Chief Justice’s concurrence may also aid the interpretation of the majority opinion. And the majority opinion, read in such light, is arguably consistent with the dissent’s view on the availability of prosecution for offences committed by a president in his personal capacity. Note Justice Burger’s citation to pages 753-55 of the majority opinion. Here’s what the majority said there:

“When judicial action is needed to serve broad public interests — as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon— the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.”[fn37]

[fn37] “The Court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions….”

In other words, the majority too made space for criminal prosecutions as different from civil suit for damages against the president for acts within his official duties.

4. Is all of this just dicta?

Yes, maybe. If Justice Burger is properly read to be saying that a sitting president is not immune from criminal prosecution, that is presumably dicta since the case was about civil liability. That said, one might argue that Justice Burger’s (and the majority’s) view of immunity from civil suits for official acts, is predicated on the idea that the public interest could be vindicated and accountability mechanisms exist through the criminal law. The thrust of their analysis is that such measures address the concern that the holding in the case leaves the public vulnerable to abuse by a sitting president.

Availability of criminal prosecution for sitting president or after leaving office?

A critic might ask whether these passages in the various opinions may be contemplating the availability of criminal prosecution only after the president leaves office. In other words, could the opinions be consistent with the idea that the president is immune from criminal indictment or prosecution while in office. There are several reasons to seriously doubt that interpretation.

First, none of the Justices explicitly make reference to prosecutions during versus subsequent to being in office. That is, they do not acknowledge that as legally relevant distinction in their reasoning. It is an uphill climb to read that distinction or limitation into their reasoning.

Second, the majority, concurring, and dissenting opinions assume the issue of immunity from judicial process concerns the period while the president is in office. They specifically discuss the implications for the president being able to carry out his duties while vexed by an ongoing civil case. Admittedly that’s for civil liability, but they don’t make any distinction when discussing criminal liability. What’s more, their reasoning of immunity while in office is, in many instances, specific to features of civil litigation (citizens bringing frivolous claims as a form of extortion, uncontrolled civil litigation).

Third, the majority and concurring opinion stressed that their holding would leave the president on equal footing with other office holders when it comes to criminal liability and, indeed, that footing is one of liability to criminal indictment and prosecution while in office.

For example, reading Chief Justice Burger literally — that the president is just like the other office holder (“a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties“) — then like them the president could be subject to criminal prosecution while in office. Burger also stated: “Far from placing a President above the law, the Court’s holding places a President on essentially the same footing with judges and other officials whose absolute immunity we have recognized.”

The majority opinion ended with a statement similar to Justice Burger’s “same footing.” The majority wrote:

“A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive.”[fn38] …
“The existence of alternative remedies and deterrents establishes that absolute immunity will not place the President ‘above the law.’ For the President, as for judges and prosecutors, absolute immunity merely precludes a particular private remedy for alleged misconduct in order to advance compelling public ends.”

[fn38] “The presence of alternative remedies has played an important role in our previous decisions in the area of official immunity. E.g., Imbler v. Pactman, 424 U.S. at 424 U. S. 428-429 (“We emphasize that the immunity of prosecutors from liability in suits under § 983 does not leave the public powerless to deter misconduct or to punish that which occurs”).

To underscore the point of this excerpt, it’s valuable to note that the full passage in Imbler on pages 428-29 refers to criminal prosecutions (e.g., “This Court has never suggested that the policy considerations which compel civil immunity for certain governmental officials also place them beyond the reach of the criminal law.”).

The footing of judges and other officials is that they can be prosecuted while in office for their personal behavior. If the president could be prosecuted only after leaving office, including the prospect of two four-year terms, he would surely not be on equal footing. This is especially the case for criminal trials, since the burden is on a prosecutor to prove guilt beyond a reasonable doubt, and the reliability of witnesses and evidence will likely erode not improve over time. In Clinton v. Jones, the Supreme Court recognized the impairment that results from delaying a (civil) case against a president until after his term of office: “Such a lengthy and categorical stay takes no account whatever of the respondent’s interest in bringing the case to trial. … delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.”

The upshot: if the president is immune from criminal prosecution while in office, and judges and other executive officials are not, that’s not close to equal footing.

On the other hand, the majority’s analysis quotes in the body of the text this excerpt from Joseph Story: “‘The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office, and, for this purpose, his person must be deemed, in civil cases at least, to possess an official inviolability.’” It is difficult to know what to make of that quote in light of other statements in the majority opinion. That said, the reference to Story likely cuts more in favor of immunity while in office (though obviously an aspect of that reasoning does not survive Clinton v. Jones). Also, footnotes 31-32 in the majority opinion quote Founders and others who suggested the president is immune from judicial procedures while in office, but the majority’s references there also go too far (including for example processes that appear to include the subpoena upheld in Nixon v. United States). In those footnotes, the majority wrote:

“Senator Maclay has recorded the views of Senator Ellsworth and Vice President John Adams — both delegates to the Convention — that “the President, personally, was not the subject to any process whatever. .”

“Thomas Jefferson also argued that the President was not intended to be subject to judicial process” [note: this is Jefferson as President responding to a decision that was decided against him; the Marshall Court in Burr held that a subpoena can be issued to a President.]

The majority does not rely on these early historical source. Indeed, the dissent chides the majority that such sources “merit only a footnote in the Court’s opinion.” The majority’s opinion instead accepts, as mentioned above, that judicial action against a president is appropriate when taken “to vindicate the public interest in an ongoing criminal prosecution.” Finally, in a legal opinion written for independent prosecutor Kenneth Starr, Ronald Rotunda read even more into the majority opinion in Fitzgerald in favor of susceptibility of a sitting president to prosecution. Rotunda’s memo states:

The majority opinion in Fitzgerald did not dispute this conclusion that the President is subject to criminal indictment. On the contrary, the majority appeared to agree with the dissent on this point. Justice Powell, joined by Justices Rehnquist, Stevens, O’Connor & Chief Justice Burger, responded that absolute immunity from civil damages “‘does not leave the public powerless to deter misconduct or to punish that which occurs.’” This is so because the judge or prosecutor — who, like the President is absolutely immune from a civil damage lawsuit brought by a private litigant in certain cases — can still be criminally prosecuted.

The stronger argument is simply to count up the dissenting Justices and Justice Burger’s opinion. That said, Rotunda’s analysis cannot be easily dismissed.

* * *

In short, not that long ago it appears that a majority of Justices assumed that criminal prosecution was possible and necessary to ensure that presidential misconduct could be addressed (and that therefore it was acceptable to grant immunity for civil actions in such cases). On the other hand, perhaps that view was one of its time. Since then we have more information about how prosecutorial actions involving a president can play out, and perhaps today many would think very differently about this issue with the thought that there is much greater risk on the criminal side than was appreciated in 1982. That said, the Supreme Court in Clinton v. Jones went even further in lifting the veil of immunity for some civil actions. On balance, the views of a majority of Justices in Nixon v. Fitzgerald quite clearly supports the conclusion that it is constitutionally permissible to prosecute a sitting president. How much that view can be minimized in light of other information is the more debatable question.