Analysis | What conservative justices said about immunity — before giving it to Trump (2024)

But when it comes to the court’s momentous decision Monday to award broad immunity to presidents — including former president Donald Trump — it’s a little harder to square with what the justices once said.

Repeatedly, in confirmation hearings over the past 20 years, the Republican-nominated Supreme Court justices who have now given Trump and other presidents a significant measure of immunity from criminal prosecution for their official acts assured Americans that nobody — not even a president — was “above the law.”

Oftentimes, their commentary didn’t specifically pertain to the possibility of a president’s being charged with a crime. But sometimes it did.

Perhaps the most direct example came from Justice Brett M. Kavanaugh. He had once written a law review arguing that criminal prosecutions of presidents should be deferred until after they leave office. This was an obvious subject of interest when he was nominated in 2018 by a president — Trump — who courted legal peril.

Kavanaugh emphasized in his confirmation hearing that his law review article was making a practical rather than a constitutional case; he wasn’t saying the Constitution didn’t allow sitting presidents to be charged, but rather that Congress should pass a law codifying the idea.

But in the course of emphasizing that, Kavanaugh cast presidential immunity as almost an unthinkable — or at least, un-thought-of — idea.

“No one has ever said, I do not think, that the president is immune from civil or criminal process,” Kavanaugh said. “So immunity is the wrong term to even think about in this process.”

He added, “But immunity is not — not the correct word, and I do not think anyone thinks of immunity. And why not? No one is above the law. And that is just such a foundational principle of the Constitution and equal justice under law.”

A year before Kavanaugh’s hearings, now-Justice Neil M. Gorsuch was asked whether a president could be prosecuted for waterboarding people. Gorsuch initially said he wouldn’t speculate on such a case, before Sen. Lindsey Graham (R-S.C.) volunteered that a president is “not above the law.”

“No man is above the law,” Gorsuch agreed. “No man.”

Then-Sen. Patrick J. Leahy (D-Vt.) in 2006 asked now-Justice Samuel A. Alito Jr. whether a president could authorize a murder — perhaps by the intelligence community — and escape prosecution.

“Neither the president nor anybody else, I think, can authorize someone to — can override a statute that is constitutional,” Alito said.

Alito didn’t explicitly state whether a president could be prosecuted for this. But he added at another point that “no person in this country is above the law, and that includes the president and it includes the Supreme Court. Everybody has to follow the law, and that means the Constitution of the United States, and it means the laws that are enacted under the Constitution of the United States.”

The phrase “above the law” was indeed spoken frequently in each of the justices’ confirmation hearings, amid questions about presidential power — though often the context was conflicts between the executive and other branches of government.

But repeatedly, the justices have sought to cast a president as unremarkable in the eyes of the law.

“Senator, I believe that no one is above the law under our system, and that includes the president,” now-Chief Justice John G. Roberts Jr. said in 2005. “The president is fully bound by the law, the Constitution and statutes.”

These now-justices’ colleague, Justice Sonia Sotomayor, in her dissent Monday effectively stated that they have gone back on their word.

She said the decision “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

“In every use of official power, the President is now a king above the law,” she wrote. She suggested that the decision could empower a president to order assassinations or a military coup against their own government, provided they were acting in their official capacity — a standard which, as the majority made clear in its opinion, was ill-defined and required separate adjudication in nearly each and every instance, after the fact.

The justices in the majority sought to combat that reasoning in their opinion, arguing that giving a president some immunity wasn’t placing them above the law. They sought to differentiate the president in his unofficial capacity — in which his actions are not immune — from his status as the leader of the executive branch.

“But unlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties,” the majority wrote. “Accounting for that reality — and ensuring that the President may exercise those powers forcefully, as the Framers anticipated he would — does not place him above the law; it preserves the basic structure of the Constitution from which that law derives.”

But there is no question that the court is saying that the president has a degree of immunity from criminal prosecution that other Americans don’t enjoy. The justices can argue that they are interpreting the law as affording that immunity in the branch of government rather than the man, but the practical implication is that a president can’t be criminally charged for things that other Americans can be charged with.

Which Justice Ketanji Brown Jackson sought to emphasize in a dissent that was more measured than Sotomayor’s.

“In the majority’s view, while all other citizens of the United States must do their jobs and live their lives within the confines of criminal prohibitions, the President cannot be made to do so; he must sometimes be exempt from the law’s dictates depending on the character of his conduct,” Jackson wrote.

“Indeed,” she added, “the majority holds that the President, unlike anyone else in our country, is comparatively free to engage in criminal acts in furtherance of his official duties.”