Amy Coney Barrett on Presidential Immunity
TL;DR
Justice Barrett advocates a two-step analysis for criminal immunity, allowing prosecution unless it unduly intrudes on executive functions.
Key Points
She joined the majority in granting a former president presumptive immunity for official acts within the outer perimeter of responsibility, provided the government cannot show intrusion on executive function.
The Justice questioned Trump's counsel on why the impeachment-as-gateway argument, according to his defense, should apply solely to the President and not other impeachable officials.
Barrett explicitly stated disagreement with the majority holding that shielded evidence about immune official acts from being used in a trial for other alleged crimes.
Summary
Amy Coney Barrett, on the Supreme Court, articulated a distinct position regarding presidential immunity from criminal prosecution, joining the majority in Trump v. United States but on separate grounds. She supported immunity for core constitutional powers but departed from the majority on key aspects of the standard for other official acts. Barrett would have the lower courts assess the validity of charges against a former president in two steps: first, determining if the criminal statute reaches the official conduct, and second, only permitting the prosecution to proceed if its application poses no danger of intrusion on executive functions.
Her concurrence notably disagreed with the majority’s part that would limit the introduction of evidence related to immune official acts in a trial concerning other crimes. She argued that if a charge is based on unofficial conduct, such as bribery, evidence related to an official act, like an ambassadorship appointment, should be admissible to prove the quid pro quo. Barrett asserted that this familiar, case-by-case procedure for evidence is preferable to the majority’s blanket exclusion, believing her two-step analysis provides a more constitutionally sound path forward for determining immunity questions.
Frequently Asked Questions
Amy Coney Barrett supports that a former president has some immunity for actions within their core constitutional powers. She advocates for a two-step test for other official acts to determine if prosecution would unduly intrude upon executive authority. The Justice does not believe that immune official acts should automatically be barred as evidence in trials concerning unofficial conduct.
Justice Barrett voted with the six-justice majority in Trump v. United States, which recognized that a former president is immune from criminal prosecution for certain official acts. However, she concurred separately, offering a different, more narrowly defined path for lower courts to assess the charges. She notably disagreed with the majority opinion’s restrictions on the admissibility of evidence concerning immune conduct.
Amy Coney Barrett disagreed with the majority’s ruling that evidence related to a president’s immune official acts must be excluded from trial for other alleged crimes. She stated that a jury must be allowed to hear about both the quid and the quo in a bribery case, even if one part is an official act. The Justice suggested such evidence admissibility should be handled on a case-by-case basis, like familiar procedures.
Sources7
The Court Went Too Far on Presidential Immunity
Barrett's Writing on Immunity Provides Another Path on Rehearing
Was Amy Coney Barrett Trump's Biggest Mistake?
Breaking down the Trump immunity decision | Constitution Center
The Supreme Court's Presidential Immunity Decision | Lawfare
LISTEN: Justice Coney Barrett asks Trump lawyer why impeachment 'gateway' would only apply to the president
The Supreme Court Gives the President the Power of a King
* This is not an exhaustive list of sources.