The Supreme Court made clear that its bombshell decision granting broad immunity to Donald Trump was intended in part to empower future presidents to make “energetic” and “vigorous” decisions without fear of criminal prosecution.
Advisers working for the president, on the other hand, may want to take a beat.
The controversial 6-3 decision, which drew sharp dissents from the court’s liberal justices and barbed criticism from President Joe Biden, provides no added legal protection for the vast apparatus of advisers and senior staff who carry out the president’s directives – from setting up a phone call in the Oval Office to orchestrating a military strike.
That dynamic could complicate the relationship between future presidents and staff, creating an imbalance between an executive who is now widely shielded from prosecution and advisers who have virtually no protection for illegal acts at all.
It could also create a line of defense against a president pushing the boundaries of legality.
“Usually, the president and the staff are aligned in not wanting to commit crimes,” said Neil Eggleston, a veteran attorney who served as White House counsel in the Obama administration. “But if you have a corrupt president and you are staff, you have to think to yourself, ‘Am I going to get dragged into something the president won’t be prosecuted for, but I can be?’”
How White House aides and other senior officials think about that question could prove especially important if Trump wins reelection in November. The presumptive GOP nominee has promised to usher in an unprecedented transformation of the government and sweep out the sort of institutionalists who sometimes stood in his way at pivotal moments during his first term.
Writing for the court’s conservative wing, Chief Justice John Roberts stressed that future presidents will enjoy absolute immunity for “core” constitutional activities and “presumptive” immunity for a wider range of presidential functions. Roberts said there was no immunity for unofficial actions that Trump took as a private citizen or political candidate.
The case was focused exclusively on the president.
“I don’t think this case is going to give any immunity to anybody else other than the president,” said Richard Painter, a former White House ethics lawyer for President George W. Bush and Trump critic who is also a law professor at the University of Minnesota. “This puts the White House staff in a really, really bad situation.”
Yet the Supreme Court’s decision said a president’s power to pardon is entitled to absolute immunity from criminal prosecution. Experts said that would appear to include the ability to pardon an aide who carried out an illegal directive on his behalf.
Whether the immunity decision could have any effect in pending cases involving former administration aides could soon become clear. A number of former Trump aides’ challenges to their prosecutions alongside Trump have been playing out for months and one is likely bound for the Supreme Court in coming weeks.
Jeffrey Clark, a former assistant attorney general, and Mark Meadows, who served as Trump’s final chief of staff, have both been charged by Georgia prosecutors with attempting to overturn that state’s election results. Both men have pleaded not guilty and are attempting to move their cases to federal court so that they can claim a different kind of immunity – one that would protect them from state prosecution.
Meadows, whose claims were rejected by a federal appeals court in Atlanta, could appeal to the Supreme Court later this month. Clark’s effort to move his case to federal court was also rejected last year. Both claimed that their actions were undertaken as part of their “official” duties at the direction of the then-president, but that position, too, was rejected.
Sources familiar with their legal cases say that both Meadows and Clark may raise the Supreme Court’s decision in their own situations, hoping that the expansion of immunity around the presidency could help.
Pentagon: Lawyers always standing by
The question of how members of the military might respond to an illegal order from a president played heavily into the briefing in the Trump immunity case – and the dissent.
The court’s three liberal justices, in a dissent written by Justice Sonia Sotomayor, worried about an order requiring the military to “assassinate a political rival” or organize a coup to hold onto power. Roberts dismissed those concerns as “fear mongering” based on “extreme hypotheticals.”
Military personnel are barred from carrying out illegal orders. Experts fear that deciphering the legality of an order can quickly become murky.
Pentagon spokesman Maj. Gen. Pat Ryder said Tuesday that he was not aware of any formal review from the Defense Department on the impact of the Supreme Court’s decision. Ryder also emphasized that the Defense Department has “legal counsel” available “to advise military leaders” on the impacts of orders.
“[W]hat I would say is always the case with any decision or order, we have legal counsel, lawyers are available throughout the Department of Defense to advise military leaders regarding the legal or prudential impacts of orders, as well as the legal effects and consequences such orders could have,” Ryder said at a news briefing.
“As it pertains to potential orders in the future or scenarios, I’m just not going to get into hypotheticals,” he said.
Last line of defense?
Aides to a president may have few legal protections from criminal prosecution, but it doesn’t mean they’re powerless in the face of a directive that runs counter to the law.
The threat of high-profile resignations, for instance, can act as a counterweight against presidential abuses.
By threatening to quit in unison in 2021, top Justice Department officials stopped Trump from installing Clark, a Trump loyalist, as acting attorney general. And during the Russia investigation in 2017, Trump backed away from plans to fire special counsel Robert Mueller after a resignation threat from then-White House Counsel Don McGahn.
“Most people who enter public life are motivated and dissuaded by things other than fear of criminal conviction,” said Ross Garber, a veteran attorney who teaches political investigations and impeachment law at Tulane Law School, who has both defended and prosecuted Republican politicians during impeachment proceedings and has represented significant former Trump advisers in January 6 investigations.
“They care about accomplishing policy objectives, reputations, press coverage, legacies, and social relationships, not to mention being the subject of congressional investigation and potential impeachment,” he said.
On the other hand, the Supreme Court made clear that a president’s power to issue pardons without fear of prosecution is absolute.
“The president can make crimes,” Painter said, “and offer to pardon anyone who helps him.”
CNN’s Haley Britzky contributed to this report.