Trump V. United States: The Ghost Of Marbury And Its Impending Pitfalls

Trump based his motion to dismiss the indictment on Presidential immunity, arguing that a President enjoys absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities, claiming that the allegations under the indictment fell within the purview of such core official duties.

The District Court,^[1] affirmed by The D.C. Circuit,^[2] denied Trump's motion to dismiss, holding that no former President possesses a blanket federal criminal immunity for any acts. Both refused to decide whether the indicted conduct formed part of his official acts as President.

The Supreme Court, however, has ruled that former Presidents have been conferred, via the constitutional structure of Presidential power, with absolute immunity from facing any criminal prosecution with regards to actions falling within the purview of their “conclusive and preclusive constitutional authority”. Moreover, the court held that such entitlement extended to a minimum guarantee of presumptive immunity from prosecution with regards to “all official acts”, excluding the residuum unofficial acts as unimmune.^[3]

Scrutiny

At the outset, the court noted that having granted certiorari to consider the question whether a former President enjoys presidential immunity from criminal prosecution for conduct during his tenure, they ought to focus on the plausible consequences the decision may have on the “balanced power structure” of the Republic.^[4] Although the court cited the landmark decision of Youngstown Sheet & Tube Co. v. Sawyer^[5] (“Youngstown”) while making this observation regarding the principle they sought to preserve, they went on to significantly depart from what the case had laid grounds to.

The D.C. Circuit had held that the separation of powers doctrine, as expounded in Marbury v. Madison^[6] (“Marbury”) and its progeny, necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress's laws.

The Marbury decision is a major landmark decision regarding the legitimacy and limits of judicial review over the executive, under the US constitutional framework.^[7] The US' fourth Chief Justice, famed jurist John Marshall propounded the ruling, having joined the Supreme Court devoid of any prior experience in the judiciary.^[8] He stated in the decision, that the scope of judicial review is limited to deciding questions pertaining individual rights, and does not extend to examining actions taken by the executive wherein they have been conferred discretionary powers.^[9] The Marbury decision thus held that certain discretionary powers of the President are only politically examinable, therefore being exempt from judicial review. The case specifically carved out two classes of such discretion which the executive possess- legal discretion and constitutional discretion.^[10] In furtherance of this observation, the most oft-quoted statement is made by Justice Marshal in the ruling, that by virtue of the constitution vesting the President of the United States with certain important political power which are to be exercised by his own discretion, there is none, and can never be, any power to control this discretion.^[11]

However, Chief Justice Marshall went on to state that, “when the legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others.”^[12] He concluded based on the aforementioned principles that, although discretionary acts are “only politically examinable,” the judiciary has the power to hear cases “where a specific duty is assigned by law.”

The D.C. Circuit had relied upon the Marbury ruling to conclude that the structure of the Constitution mandates that the President is “amenable to the laws for his conduct” and “cannot at his discretion” violate them.^[13] In furtherance of the same, it was noted that former President Trump's actions allegedly violated generally applicable criminal laws, meaning those acts did not fall within the purview of his “lawful discretion”; thereby not being entitled to any structural immunity from the Marbury decision. However, without having probed, let alone answer the crucial question of whether the indicted conduct of former President Donal Trump fell within the ambit of his “constitutional discretion”, and whether the actions were justified thereunder, such a deduction was rather inchoate.

The Supreme Court differed principally from the lower courts' assessment, holding instead that it is the very nature of the constitutional powers vested with the President, which necessitate certain immunity from criminal prosecution when executed in an official capacity. The decision also quotes Marbury, albeit just once, to reinstate that judicial review is inapplicable upon discretionary actions undertaken by the President in exercise of the powers vested in him by the Constitution.^[14]

However, placing reliance on the Marbury decision to draw such a conclusion in a case of such magnitude is not, and will never be universally acceptable. This is because the landmark decision has been divisive since its outset: being praised for its extrapolation of the principles concerning the constitutional limits on federal authority,^[15] while simultaneously being criticized for its flawed interpretation and reading of the constitution itself.^[16] The current ruling by the Supreme Court regarding Donald Trump's indictment, does not only repeat the same principle based error borne in the Marbury decision, but rather makes a much sterner holding by categorically providing a blanket federal immunity to the discretionary actions of the President from any form of criminal prosecution.

Primarily, the holding is incompatible in its totality with Article III (2) of the United States Constitution, which states that “judicial power shall extend to all cases, in law and equity, arising under this Constitution”. The decision will have far graver subsequence with regards to potentially having enabled abuse of executive power, while having restricted the scope of judicial review over the exercise of the President's discretionary powers.

The ruling also cites the Youngstown decision to state that the Presidential powers are “conclusive and preclusive”^[17]. However, the present holding fails to consider the context under which the principle was stated. Justice Jackson, while remarking the nature of Presidential powers being conclusive as well as preclusive, enclosed a necessary covenant that the expansive nature of the powers conferred must be scrutinized cautiously, to avoid jeopardizing “the equilibrium established by [the] constitutional system”.^[18] This exact equilibrium has plausibly been distorted via the decision rendered in the present case, by shielding the Presidential discretionary command from any form of judicial oversight.

[1] 2023 WL 8359833, *15 (DC, Dec. 1, 2023)