Topic 10--The U.S. Constitution and Presidential Powers

​Government 101 Case Study: Presidential Powers and the Trump Prosecutions

Case Title:
Presidential Power, Immunity, and Accountability--The Trump Legal Proceedings and the U.S. Constitution

A delineation of the powers of the president exemplified by the cases currently involving former President Donald Trump.

Essential Question:  What powers does the Constitution provide to the President and what are the limits?
Overview
     The U.S. Constitution outlines the scope of presidential powers, including immunity and the ability to grant pardons. These powers have specific limits and interpretations that affect how they can be applied, especially in the context of criminal charges against a sitting or former President.  Although the Constitution does not explicitly provide for presidential immunity, court rulings and legal interpretations developed the concept over time.  Types of presidential immunity include absolute immunity for official acts.  Based upon a Supreme Court ruling, the President has absolute immunity from civil suits for actions taken in the course of their official duties. In Nixon v. Fitzgerald (1982), the Court held that a sitting president could not be sued for damages in civil litigation for official acts while in office. This immunity allows the President to perform duties without fear of constant litigation.  However, no absolute immunity exists for a sitting president from criminal prosecution.  Through the Office of Legal Counsel, the Department of Justice asserted that a sitting president cannot be indicted or prosecuted. Through DOJ memos from 1973 to 2000, their opinion argues that criminal proceedings might interfere with the President's ability to perform constitutional duties. It is important to note that this is not settled law but rather an internal DOJ policy untested in the Supreme Court.  While a sitting president is generally protected from criminal prosecution during their term under the DOJ policy, they are not immune from investigation. Once out of office, a former president can be prosecuted for crimes committed before or during their presidency. 
     Donald Trump's legal issues serve to demonstrate several constitutional principles, specifically related to the rule of law, the separation of powers, and the accountability of public officials.  The Constitutional Principle of the Rule of Law requires equity before the law and the feces process.  The charges against Trump highlight the principle that no one, including a former president, is above the law.  Rooted in the Constitution's insistence on equal treatment under the law and articulated in the 14th Amendment, this guarantees equal protection.  The Constitution, particularly the 5th and 14th Amendments, ensures due process of law for all individuals. The legal proceedings against Trump, whether state or federal, are conducted by these due process protections, ensuring he receives a fair trial and the right to defend himself.  The Constitutional principle of the Separation of Powers, including Articles I, II, and III of the Constitution, is exemplified by the involvement of the judicial branch in prosecuting Trump.  As an independent branch of government, the courts have the authority to interpret and enforce the law, irrespective of an individual's previous role as president.  The executive branch, through the Department of Justice in federal cases and state prosecutors in state cases, is responsible for enforcing laws, but it is subject to judicial review and oversight.  Congress also plays a role in investigating and, where appropriate, impeaching presidents.
     Trump's prior impeachments illustrate the constitutional mechanism for holding a president accountable for "high crimes and misdemeanors." The charges against Trump also reflect the Constitutional Principle of checks and balances designed to prevent any one branch of government from overstepping its authority. For example, the judiciary's role in criminal proceedings serves as a check on potential abuses of power by the executive.  In federal cases, the judicial process is an essential check on executive power, as the former president is subject to legal accountability even after leaving office. The state-level charges also show how state governments retain autonomy and authority under the 10th Amendment to enforce their laws, regardless of federal officeholders.  The Constitution's principle of Impeachment and Criminal Liability provides distinct mechanisms for dealing with misconduct by a president. Trump's impeachment trials addressed political accountability while in office, but criminal charges, as in this case, address legal accountability post-presidency. Article II, Section 4 of the Constitution states that the president "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."
     However, the Constitution does not prevent criminal charges from being pursued after a president leaves office, showing that impeachment is not a substitute for criminal liability.  Finally, the fact that Trump faces state and federal charges demonstrates the Constitutional principle of Federalism.  Federalism provides state and federal governments jurisdiction over different crimes as long as they do not violate double jeopardy protections under the 5th Amendment.  For example, Trump faces state charges in Georgia related to alleged election interference, while federal charges relate to broader issues such as obstruction of justice or interference with federal election processes. These state and federal systems operate independently but are rooted in constitutional authority.  The charges against Donald Trump exemplify constitutional mandates designed to ensure the rule of law, separation of powers, checks and balances, and Federalism, ensuring that all individuals, including a former president, become accountable under the law.  However, complications emerge if Trump wins the presidency again in 2024.  As of this writing, the election is two months away, but the possibilities show how some constitutional principles outweigh others. 
     Ongoing federal criminal cases might be delayed. However, this does not apply to state charges, and he might face legal proceedings at the state level.  Article II, Section 2 of the U.S. Constitution grants the President the power to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."  However, the President can only pardon offenses against federal law.  Therefore, state crimes are not pardonable by a President, and state attorneys general can still prosecute state-level offenses.  Nevertheless, the President's pardon power is extensive, and the court's interpretations of this power include reducing sentences, conditional pardons, and amnesties. The power is not subject to Congressional approval, and the Constitution applies few restrictions.  The only explicit constitutional limitation on the pardon power is that it cannot stop or overturn impeachment proceedings. For example, presidents cannot pardon themselves or others to prevent removal from office if impeached and convicted by Congress.  It is unclear whether presidents can pardon themselves. The Constitution neither prohibits nor allows self-pardons, and no president has ever tried to do so. Some legal scholars argue that a self-pardon violates the principle that no person can judge their case, while others believe the broad language of the pardon power permits it.
     If Trump becomes President and attempts a self-pardon, it may lead to a constitutional crisis and require a ruling by the Supreme Court.  Ultimately, the constitutional principles of presidential immunity and pardon power provide a complex backdrop for ongoing legal proceedings involving Donald Trump, particularly if he is re-elected in 2024.  As of this writing, Donald Trump faces multiple criminal charges across several cases. They include federal and state jurisdictions and relate to his actions during and after his presidency. Trump faces federal charges, including willful retention of national defense information, conspiracy to obstruct justice, and false statements. This case, brought by Special Counsel Jack Smith, centers around Trump's alleged mishandling of classified documents after leaving the White House. It alleges that Trump retained sensitive documents at his Mar-a-Lago estate and obstructed efforts to retrieve them.  He also faces federal charges, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an attempt to obstruct an official proceeding, and conspiracy against rights.
     Special Counsel Jack Smith focused on Trump's efforts to overturn the results of the 2020 presidential election, including pressuring state officials and organizing fake elector schemes.  In the Georgia Election Interference Case, Trump and others face charges under Georgia's RICO (Racketeer Influenced and Corrupt Organizations) Act, including solicitation of violation of oath by a public officer, conspiracy to commit forgery, and other charges related to efforts to overturn the 2020 election results in Georgia.  This case, led by Fulton County District Attorney Fani Willis, targets Trump and his associates for allegedly trying to overturn Georgia's 2020 election results, including the infamous phone call to Georgia Secretary of State Brad Raffensperger asking to "find" votes.  Trump was found guilty in New York of falsifying business records in the first degree.  This case, led by Manhattan District Attorney Alvin Bragg, claimed that Trump orchestrated hush money payments to adult film actress Stormy Daniels and others to cover up potential scandals during the 2016 presidential campaign and then falsified business records to conceal these payments. 
     If Trump wins the Presidency, he becomes immune from federal prosecution while in office. Accordingly, all federal cases, including the classified documents case and the 2020 election interference case, become delayed until he is no longer in office. However, the state cases remain viable.  While the cases might proceed, the political and logistical challenges of prosecuting a sitting president become daunting.  If Trump does not win the 2024 presidential election, the criminal cases against him will proceed without presidential immunity protections. He might face conviction on all charges in court and potentially receive prison sentences.  If Trump wins the Presidency, he can pardon himself for federal offenses, though it is constitutionally unclear whether a president has the power to self-pardon. He cannot, however, pardon himself for state crimes. Therefore, the New York and Georgia cases remain a legal challenge for him even if he becomes president. As exemplified by his winning the GOP nomination, a Trump presidency prompted his legal team to argue for a postponement of the cases to avoid interference with his presidential duties or campaign. A postponement might create significant legal and political complications, potentially delaying some cases until after his time in office.
     Overall, the outcome of the 2024 presidential election looms large, with the potential to significantly impact the trajectory of these criminal charges. The timing and feasibility of trials, as well as the potential for convictions, are all shrouded in uncertainty, adding to the anticipation surrounding the election. It is important to note that recent significant Supreme Court rulings addressing presidential immunity in Trump v. Vance (2020) and Trump v. Mazars USA, LLP (2020) significantly impacted current charges against him. These cases dealt with whether a sitting president has immunity from state criminal subpoenas and Congressional subpoenas for personal financial records. These decisions significantly clarified the scope of presidential immunity in the context of criminal and Congressional investigations.  The Trump v. Vance (2020) case involved a subpoena issued by the Manhattan District Attorney, Cyrus Vance Jr., seeking Trump's tax returns and financial records as part of a state grand jury investigation into potential criminal conduct, including alleged hush money payments made during the 2016 presidential campaign.  The Supreme Court ruled 7-2 that a sitting president does not have absolute immunity from state criminal subpoenas.
     The Court held that the President is not above the law and must comply with a state criminal investigation like any other citizen. Chief Justice John Roberts wrote the majority opinion, stating that "no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding."  Key Points from the Majority Opinion asserts that the Constitution does not grant the President absolute immunity from state criminal subpoenas.  Moreover, the President can challenge specific subpoenas on grounds such as harassment or bad faith, but there is no absolute bar. The ruling reaffirmed the principle established in United States v. Nixon (1974) that even a sitting President must comply with a subpoena in a criminal investigation.  Justices Clarence Thomas and Samuel Alito dissented. Their dissenting opinions argued for more robust protections for the President against state criminal subpoenas while in office.  Thomas argued that while a sitting president does not have absolute immunity, a state prosecutor should have a higher standard to obtain documents from a sitting president. He believed the Court should adopt a more stringent test to prevent undue interference with presidential duties.  Alito argued that the majority's decision did not sufficiently consider the "unique position of the President" and the potential for state prosecutors to harass or unduly burden the President with subpoenas. Alito would have required state prosecutors to demonstrate a "heightened showing" of need before enforcing a subpoena against a sitting president. He expressed concerns that the ruling could open the door to nationwide politically motivated investigations by local prosecutors. 
     The Trump v. Mazars USA, LLP (2020) case involved subpoenas issued by three House committees to Trump's accounting firm, Mazars USA, LLP, and his financial institutions, seeking his financial records, including tax returns.  Congress issued subpoenas as part of its oversight responsibilities.  The Supreme Court ruled 7-2 to vacate lower court rulings that had permitted the subpoenas and sent the cases back to lower courts for further proceedings. The majority, led again by Chief Justice Roberts, established a new standard that courts must use when evaluating congressional subpoenas for a president's records.  The Court rejected the sweeping argument for absolute presidential immunity and the idea that Congress had unlimited authority to subpoena a president's records.  The ruling set out a balancing test to weigh Congress's need for information against the burdens imposed on the President.  The decision requires courts to consider factors such as whether the subpoena is limited, whether there is a legitimate legislative purpose and the burdens it places on the presidency.  Justices Clarence Thomas and Samuel Alito, in their dissent, expressed distinct concerns about Congressional subpoenas. 
     Thomas argued that Congress lacks the authority to subpoena the President's documents unless they prove linked to impeachment proceedings. He found the majority's new balancing test too vague and not sufficiently protective of the presidency from potential harassment by Congress.  Alito agreed that the Court's new test was too vague, and that Congress should meet a more stringent standard before compelling a president to turn over personal records. He argued that the separation of powers doctrine necessitates a much clearer showing of the necessity from Congress to justify such subpoenas.  Both cases reaffirm that the President is not above the law and can be subject to criminal and Congressional investigations.  The rulings underscore the delicate balance between holding a president accountable and safeguarding the presidency from undue harassment or burdens.  These decisions do not address all aspects of presidential immunity, such as potential criminal prosecution of a sitting president, but they clarify that a president is subject to legal processes and oversight. 
     Overall, the Supreme Court rulings in these cases established important precedents for understanding the limits of presidential immunity, particularly in the context of investigations involving personal or private conduct rather than official duties. The dissenting opinions, while in the minority, highlight concerns about protecting the presidency from potential abuse or overreach by state prosecutors or Congress.  However, in the most recent case, Trump v. United States (2024), the Supreme Court ruled that former President Donald Trump is entitled to some degree of immunity from criminal prosecution for official acts he undertook while in office. This ruling followed his claim that his actions related to the 2020 election and January 6 were within his official duties as President. The Court did not grant Trump the absolute immunity he sought but ruled that acts falling within the core of his presidential duties are protected from criminal prosecution. However, unofficial acts such as interactions with state officials and efforts to alter election results in certain states are not protected. This distinction means that Trump is immune from specific official actions, such as meetings or discussions, that are part of his presidential duties. However, he may still face charges for unofficial actions, such   as efforts to pressure state officials to change electoral votes. This ruling impacts the federal charges Trump faces regarding his attempts to overturn the 2020 election, as it could limit the evidence prosecutors can use against him.
     For instance, while they can pursue charges related to unofficial actions, they cannot use evidence of similar official acts. The Court's findings complicate the ongoing cases against Trump, particularly those led by Special Counsel Jack Smith.  Two justices dissented, including Justice Sonia Sotomayor and Ketanji Brown Jackson.  Sotomayor argued that the ruling granted the president an overly broad form of immunity, even for potentially corrupt official actions. She claims this reshapes the presidency by providing excessive protection for official acts, potentially encouraging misconduct without legal accountability. Sotomayor expressed concern for democracy, contending that the majority's approach allows presidents to escape prosecution for possible criminal actions. She emphasized that no textual basis in the Constitution supports the immunity the majority granted.  They both expressed alarm that the Court set a dangerous precedent, shielding future presidents from legal consequences even for severe abuses of power.  Their dissent warned that such broad immunity undermines the checks on presidential authority, allowing the president's powers to expand without proper legal boundaries.  While the Constitution outlines the scope of presidential powers, many issues complicate the simple facts of this and other principles requiring judicial review and reconciliation. 


Essential Question:
​What powers does the U.S. Constitution grant to the President, and what are the limits of those powers?

Case Background:
​The U.S. Constitution provides the President with significant authority, but also imposes limits designed to preserve the rule of law, separation of powers, and federalism. Former President Donald Trump’s multiple legal challenges—federal and state criminal charges, Congressional investigations, and previous impeachments—offer a real-world examination of constitutional principles.
This case explores presidential immunity, the power of the pardon, the roles of each branch of government, and the checks and balances tested in Trump’s legal battles. It also addresses recent Supreme Court rulings that clarify the boundaries of presidential power.

Constitutional Powers and Principles Highlighted:
  1. Presidential Immunity:
    • Nixon v. Fitzgerald (1982): A sitting president has absolute civil immunity for official acts.
    • Trump v. Vance (2020): A sitting president does not have absolute immunity from state criminal subpoenas.
    • Trump v. United States (2024): Presidents may have immunity for official acts but not for unofficial conduct.
  2. Pardon Power (Article II, Section 2):
    • Grants the president the power to pardon offenses against the United States (federal crimes only).
    • Cannot be used in cases of impeachment.
    • Legal uncertainty remains about self-pardons.
  3. Checks and Balances:
    • Congress can investigate and impeach (Articles I and II).
    • Judiciary interprets law and can authorize subpoenas or criminal proceedings.
    • Executive enforces laws but is subject to oversight.
  4. Federalism:
    • Federal and state governments may prosecute different crimes, so long as double jeopardy protections are not violated (5th Amendment).
    • A sitting president is protected from federal criminal prosecution (under current DOJ policy), but not from state prosecution.

Overview of Charges Against Donald Trump:CaseJurisdictionChargesStatus/Key IssuesMar-a-Lago Documents CaseFederalObstruction, mishandling of classified documentsCould be delayed if Trump is re-elected
2020 Election Interference (Federal)FederalConspiracy to defraud the U.S., obstruct official proceedingsSome acts may be shielded by immunity
Georgia Election CaseState (Georgia)RICO, conspiracy, solicitation of public officerNot subject to presidential pardon
Hush Money Case (New York)State (New York)Falsifying business recordsTrump convicted; sentencing pending
Key Legal Questions:
  1. Can a president be prosecuted for crimes committed while in office?
  2. Does presidential immunity cover unofficial acts such as pressuring state officials?
  3. Can a president pardon themselves?
  4. How do state and federal charges intersect under the principle of federalism?

Classroom Analysis Activities:Activity 1: Source Analysis
  • Read excerpts from:
    • Nixon v. Fitzgerald (1982)
    • Trump v. Vance (2020)
    • Trump v. United States (2024)
Discussion Questions:
  • What constitutional principles are being tested?
  • How did the Court define the limits of presidential immunity?
  • Do you agree with the majority or dissenting opinion in each case? Why?
Activity 2: Role Play – Constitutional Crisis Simulation Scenario: Trump is re-elected and attempts to pardon himself for federal offenses.
  • Students take on the roles of the Executive, Legislative, and Judicial branches.
  • Each group drafts a response based on their constitutional authority.
Activity 3: Federalism in Action Compare the federal and state charges in terms of jurisdiction and constitutional limits.
  • Why can’t a president pardon state crimes?
  • What would happen if a sitting president refuses to comply with a state subpoena?

Writing Prompt (Argumentative Essay):Prompt: Should the president have any form of criminal immunity while in office? Support your argument using at least three constitutional principles and one Supreme Court case.

Optional Research Extensions:
  • Investigate impeachment as a political versus legal remedy.
  • Compare U.S. presidential powers to those of leaders in other countries.
  • Research the history of controversial presidential pardons (e.g., Richard Nixon, Bill Clinton).

Citations and Resources:
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