Presidential Immunity Decision May Have Implications for Congressional-Executive Divide on Criminal Contempt

The Supreme Court’s opinion establishing presidential immunity from many criminal prosecutions in Trump v. United States represents a watershed moment in the development of the law of separation of powers under the U.S. Constitution. It raises fundamental questions about the nature and efficacy of restraints on presidential power in a scheme of checks and balances. It will generate political commentary and academic treatments for decades to come. In the nearer term, it will continue to generate a wealth of analysis and critiques, including the introduction of the “No Kings Act,” a reactive legislative proposal led by Senate Democrats. Beyond the official act immunity question decided in former President Donald Trump’s criminal case, the Court’s reasoning casts a long shadow on other separation of powers issues, including executive privilege doctrine, unitary executive theory, even-handed administration of justice, presidential impeachment, and the rule of law.

Trump also appears to tip the hand to the Supreme Court’s view on a longstanding source of tension between Congress and the Executive: whether the U.S. attorney has a mandatory obligation to present evidence of criminal contempt of Congress when formally referred.