The recent U.S. Supreme Court decision in Trump v. United States has ignited chatter and concern over the potentially broad scope of immunity granted to presidents and their employees. In its 6-3 decision, the Supreme Court found that former President Trump can’t be prosecuted for actions that were within his constitutional powers as president, granting him immunity from charges for alleged efforts to overturn the 2020 election. While Chief Justice Roberts wrote that there’s no immunity for “unofficial acts,” the court didn’t clarify what constitutes an “official act.”
The majority’s rationale for immunity from criminal prosecution for official acts during a president’s tenure rests on the fear that “[e]ven if the President were ultimately not found liable for certain official actions, the possibility of an extended proceeding alone may render him ‘unduly cautious in the discharge of his official duties.’”
The dissenting justices argued that the majority’s decision renders a president above the law, and the Biden administration echoed that view and called it a “dangerous precedent.”
Weaponizing the IRS?
One concern raised by tax lawyers is that the Internal Revenue Service could be weaponized against potential political opponents. For example, the recent ruling in effect decriminalizes former President Nixon’s conduct—and, according to some experts, would have likely protected him from prosecution for his role in the Watergate scandal.
“I’m concerned about an abuse of power at the IRS by the executive branch,” said Michael A. Gregory, an expert in conflict resolution and a former IRS official. “With this new ruling, it appears that an unscrupulous executive could take actions that are currently considered inappropriate by the IRS,” he explained. The Supreme Court’s ambiguous decision creates a gray area around what’s defined as an “official act,” potentially leaving the door open for the interpretation that a president’s request for tax audits or politically motivated investigations of political opponents to deter them is immune from prosecution (or, rewarding political acquaintances by terminating IRS audits of them).
Not as Broad as Feared
The opposing view is that the scope of the Supreme Court’s decision isn’t as broad as it appears to be. While some critics of the opinion fear a precedent of lawlessness for future presidents, others argue that while the Court held that “former presidents can never be prosecuted for actions relating to the core powers of their office, and that there is at least a presumption that they have immunity for their official acts more broadly,” there’s still the “possibility that the charges brought against former President Donald Trump” can “go forward to the extent that the charges are based on his private conduct, rather than his official acts,” as explained by Amy Howe in her Opinion Analysis for SCOTUSblog. Likewise, some of the egregious behaviors that the dissent fears would be rendered immune from prosecution by the decision, such as a coup, assassination of a rival or a bribe in exchange for a pardon, would still be prosecutable because each would also involve unofficial conduct and competing Constitutional powers.
