During an Aug. 7 campaign rally in Michigan, 2024 Democratic nominee Vice President Kamala Harris claimed 2024 Republican nominee and former President Donald Trump will be “immune no matter what he does in the White House” going forward as a result of the U.S. Supreme Court’s recent ruling on presidential immunity.
Verdict: Unsubstantiated
Some experts labeled Harris’ claim as correct, while others said her claim provided an “inaccurate description” of the ruling, emphasizing that the ruling does not provide “complete immunity.”
Fact Check:
A new USA Today/Suffolk University/WSVN-TV poll puts Harris “within ‘striking distance’” of Trump in Florida, with Harris receiving 42% support of those sampled and Trump receiving 47% support, the outlet reported.
During the rally, Harris claimed Trump will be “immune no matter what he does in the White House” going forward as a result of the U.S. Supreme Court’s recent ruling on presidential immunity.
“The United States Supreme Court basically just told the former President who has been convicted of fraud that going forward he will be immune no matter what he does in the White House,” Harris said.
The claim is unsubstantiated. Harris is referring to a July 1 Supreme Court ruling on presidential immunity. According to SCOTUS Blog, a blog that covers, but is not affiliated with the Court, the justices ruled that “former presidents can never be prosecuted for actions relating to the core powers of their office, and that there is at least a presumption that they have immunity for their official acts more broadly.” In other words, the ruling applies to a president’s “official acts.”
Likewise, on July 1, Reuters reported the ruling applies to a president’s “official acts,” but not his “unofficial ones.” Commentary and opinion pieces from the American Civil Liberties Union (ACLU) and The Hill also emphasized that the ruling applied to only “official acts,” with the latter distinguishing between “absolute immunity” and “presumptive immunity.”
According to the same opinion piece from The Hill, “absolute immunity” is derived from the Constitution, which gives the president “conclusive and preclusive power” via the executive branch of government and bars the legislative branch for making laws to “restrict” him. Similarly, “presumptive immunity” applies to “official acts” “if a prosecution would intrude on executive branch power.”
A spokesperson for the ACLU directed Check Your Fact to the organization’s aforementioned commentary piece about the ruling.
The ruling follows an indictment brought against Trump, who is accused of attempting to overturn the results of the 2020 presidential election. The indictment alleges that Trump “conspired to overturn [the election] by spreading knowingly false claims of election fraud to obstruct the collecting, counting, and certifying of the election results,” according to the same ruling. Trump argued that he was immune from criminal prosecution because he was acting within his official duties as president at the time, the same ruling indicates.
Several legal experts offered differing perspectives on Harris’ claim with Check Your Fact.
Jeremy Paul, a professor at Northeastern University School of Law, explained that while Harris’ claim is true, it is actually “much more complicated.”
“If I were to fact-check Harris’ claim, I’d say it’s true, but it’s much more complicated than that. The Court ruled the president is immune from criminal prosecution when they take actions considered official,” Paul said.
“There are weaknesses to Harris’ statement. The president can still be impeached, but it’s almost impossible to accomplish because the [two] parties are polarized. What Vice President Harris means is, it’s almost impossible to force a president to obey the law.”
“The Court carved out an exception for things the president does which are not official, for example, if the president got into a bar fight, he could still be prosecuted. But I think she’s basically right, because we don’t care about bar fights, we care about them abusing power. So she’s correct even if it wasn’t artfully stated,” he added.
Michael Gerhardt, a professor at the University of North Carolina School of Law, said Harris’ claim is “largely if not wholly true.”
“I think the charge is largely if not wholly true. The Court said that a president is completely immune from criminal process for anything he does when exercising core presidential powers. It went further to say that courts were not allowed to use any official acts as evidence of intent. Thus it effectively allows presidents to clothe their actions with legal immunity so long as they claim they are exercising their core powers. Where the comment could be clarified is that the court also said a president could be liable for unofficial acts but only defined them as having been done in their personal capacity,” he said.
John Malcolm, vice president of the Institute for Constitutional Government at the conservative-leaning Heritage Foundation, said Harris’ claim is an “inaccurate description” of the ruling.
“Harris’s fudge word, of course, is ‘basically,’ but even with that, I think this is an inaccurate description of what the Supreme Court said in Trump v. U.S.”
“The Court said that former presidents receive ‘absolute immunity’ for a very small subset of ‘official actions’ that they undertake while in office, specifically, only for those actions that derive from president’s ‘exclusive sphere’ of authority under the Constitution,” Malcolm said.
“The Court said that former presidents receive only ‘presumptive immunity’ for the overwhelming majority of ‘official actions’ that presidents undertake, specifically, those actions that derive from a president’s concurrent authority with Congress under the Constitution and that derive from statutory authority that Congress has given the president. And like any presumption, it can be overcome by a prosecutor showing that the president’s actions were outlandish and that proceeding with a prosecution would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
“And, with respect to ‘unofficial acts’ (that is, personal acts) undertaken by a former president while he was in office, he receives no immunity from prosecution whatsoever.”
“The Court also remanded the case for the trial court to take an initial stab at determining which actions alleged in the indictment against Trump in the D.C. federal case fall into which category,” he added.
Jeevna Sheth, senior policy analyst for Courts and Legal Policy at the liberal-leaning Center for American Progress, said the Court’s ruling “has essentially made the president above the law.”
“The Supreme Court has essentially made the president above the law. The court radically expanded the powers of U.S. presidents by allowing them to use ‘official acts’ to shield illegal actions from prosecution. The court gave the president unprecedented criminal immunity for official acts, as well as presumptive immunity for unofficial acts taken while in office. The court’s ill-defined standard for these terms, along with the fact that the majority also prohibited prosecutors from using evidence from official acts to bring a case for unofficial acts, will make it very difficult for the federal government to hold a president accountable,” Sheth said.
Walter Olson, senior fellow at the libertarian-leaning Cato Institute’s Robert A. Levy Center for Constitutional Studies, said the decision allows for “broad but not complete immunity.”
“The Supreme Court’s decision in Trump v. U.S. granted ex-Presidents broad but not complete immunity. The Court laid out three categories of possible action by a sitting President, and made each subject to a different rule,” Olson said.
“Unofficial actions taken by a President are not immune — this was agreed by both sides in the Trump case. This can get tricky because it’s not always clear what is unofficial and what is official. In the New York fraudulent business records case, prosecutors take the view that it was not an official act for Trump to sign checks arising from an earlier agreement to pay hush money, even if he signed some of those checks while at his desk in the White House. (Trump has not necessarily conceded this position.) Harris might argue that her wording was close to correct, because ‘what he does in the White House’ could be meant as ‘what he does in an official capacity,’ and she also used the word ‘basically,’ which signals that she is simplifying away some complexities.”
“The other problem, however, is that the Court divided official action itself into two categories, one of which gets absolute immunity and the other of which doesn’t. The first (absolute) immunity relates to the use of some powers exclusive to the President such as vetoing legislation, appointing ambassadors and various other Constitutional functions. The second relates to presidential authority that is official but falls outside that core executive authority. This might include powers that the President shares with Congress. Prosecutors can seek to punish actions in this category only if they show that doing so ‘would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’” That could be a tough hurdle for prosecutors to overcome, and presidents may often get cases dismissed when they fall into this middle category. Still, the President does not enjoy absolute immunity in this middle band. Again, it’s possible that Harris could point to her use of the word ‘basically’ as a signal to listeners that she was simplifying somewhat,” he explained.
Kim Wehle, a professor at the University of Baltimore School of Law, simply stated, “she is correct.”
Check Your Fact also contacted spokespersons for Harris and Trump for comment.