How the Supreme Court’s Presidential Immunity Decision Twisted a Great Legacy

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A new movie^[2] about Nazi leader Hermann Göring’s war-crimes trial will shine a spotlight on the Nuremberg service of legendary Supreme Court Justice Robert H. Jackson—and, in doing so, on the Supreme Court’s calamitous presidential immunity decision^[3] last year.

The movie Nuremberg will premiere at the Toronto Film Festival on Sept. 7, with Oscar-nominated actor Michael Shannon playing Jackson. Jackson served as chief U.S. prosecutor at Nuremberg for the trial of Göring and other Nazis. He spearheaded a historic vindication of the rule of law in response to horrendous atrocities.

Appreciating Jackson’s role at Nuremberg highlights an important and underappreciated problem in the Supreme Court’s presidential immunity decision. Chief Justice John Roberts’ majority opinion wraps itself in the authority and aura of Jackson, a revered justice invoked by Supreme Court nominees ranging from Roberts to Elena Kagan in their confirmation hearings. But Roberts’ opinion is a severe distortion of Jackson’s legacy—and, indeed, it is no overstatement to say that it is a desecration of Jackson’s memory and his heroic service as Nuremberg prosecutor.

Roberts’ opinion relies heavily on Jackson’s seminal concurrence in the 1952 steel seizure case^[4], in which the court struck down President Truman’s seizure of steel mills during the Korean War. Jackson’s concurrence is a linchpin of Roberts’ analysis, cited or quoted 10 times. But the court’s immunity analysis could not be further from what Jackson stood for on the rule of law, especially in his Nuremberg service.

The immunity decision creates a broad new swath of absolute presidential immunity for what it deems “core” presidential powers. This immunity applies even when statutes passed by Congress and signed by a president make it a crime to engage in the presidential conduct at issue. Thus, according to an example in the court’s opinion, Trump’s alleged conversations with Justice Department officials to fraudulently overturn a free and fair election—one of the gravest possible crimes in a constitutional democracy—were shielded by absolute immunity as “core” official acts, no matter how corrupt.

Even beyond “core” presidential powers, said the court, other official acts by the president are “at least” presumptively immune, and a prosecutor bears an enormous burden in overcoming that presumption. The court put Trump’s alleged attempts to have Vice President Mike Pence criminally rig the Electoral College vote in this protected category.

Purely private conduct, the court ruled, could be prosecuted. But in a final judicial coup de grâce, no evidence of official acts may be introduced in such prosecutions—again, no matter how corrupt the official acts. And, unlike the first two categories, the court refused to provide any examples from Trump’s indictment in this permitted category, even though Trump’s lawyer had conceded the point.

Jackson’s steel seizure case concurrence has long been an influential touchstone for presidential power analysis, with its creation of a three-part structure. When Congress and the president act in concert, the president’s power is at its zenith. When the president acts and Congress is silent, the president’s power is in an uncertain “zone of twilight.” And when the president’s acts conflict with a congressional enactment, his power is at its “lowest ebb.”

As professors Kate Shaw^[6] and Kim Lane Scheppele^[7] have detailed, the court’s immunity opinion fundamentally misconstrues Jackson’s structure. In Jackson’s framework, the president’s authority to take actions conflicting with a congressionally enacted law is very limited, with the president’s power at its nadir. Presidential claims in this category “must be scrutinized with caution,” warned Jackson, “for what is at stake is the equilibrium established by our constitutional system.”

But, in sharp contrast, last year’s immunity decision confers, as a general rule, immunity (absolute or presumptive) for all of a president’s “official” acts even if they violate the law. In Roberts’ approach, the only exception to presidential immunity—the only time when a president can be held accountable for breaking the law and committing a crime—is when “official” acts are not involved.

The presidential immunity decision thus becomes the presidential impunity decision. The court flips Jackson’s structure on its head.

When Jackson’s Nuremberg service is considered, the conflict between the court’s decision and Jackson’s perspective is particularly stark and vivid. The very premise of Jackson’s Nuremberg prosecutions was that, no matter how “official” the actions, war crimes could not be countenanced, even—or especially—at the highest levels of government.

In the immunity case, Trump’s lawyer refused to disavow the proposition that a presidential order to Seal Team Six^[12] to assassinate a political rival would be immune and protected. The Supreme Court majority’s only response was to dismiss the dissenters’ reference to it as “fearmongering” and an “extreme hypothetical.” But, whether extreme or not, presidential immunity for such an abhorrent act is far from illusory. It appears to be plainly covered by the majority’s opinion as an official presidential order to the military (a “core” constitutional power if ever there was one).

It seems clear that Robert Jackson, the justice who fought so valiantly for accountability for war crimes, would have been appalled by such an approach. Invoking Robert Jackson for a ruling that would confer immunity on a president’s deliberate order of atrocious war crimes dishonors Jackson’s memory and is an affront to his legacy. His Nuremberg service deserves better.

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