For a purportedly originalist Supreme Court, the majority opinion in Trump v U.S. was notably light on the long disquisitions on “history” that have become common in the court’s rulings.
Chief Justice John Roberts, writing for the majority, leaned on what he labeled the “constitutional tradition” of separation of powers to establish the president’s immunity from criminal prosecution for “official acts.”
Among these official acts, he concluded, was former President Donald Trump’s alleged effort to pressure Vice President Pence to reject the electoral votes of key states. Roberts reasoned that even though the president has no role in Congress’s electoral vote count, the vice president has a statutory and constitutional duty to preside over the process, turning any discussion of this duty into “official conduct” that is “presumptively immune.”
A prosecution could overcome this presumption, Roberts intimated. But to do so, it would have to show that criminally prohibiting such a conversation would not risk intruding “on the authority and functions of the executive branch.” Making the task harder still is the court’s ban on considering the president’s motives when distinguishing between official and unofficial conduct.
But this gets the history wrong. In describing the electoral vote count process, the Constitution states that “the president of the Senate” — meaning the vice president — “shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted.”
By design, the Constitution omits any mention of a presidential role in this process. That silence does not mean that presiding over the electoral vote count is yet another responsibility that the vice president carries out “at the will and as the representative of the president,” as Justice Roberts puts it. Rather, it reflects the Framers’ deliberate exclusion of the president from the process altogether.
As noted in an amicus brief signed by 15 founding-era historians (including one of us), the Framers were alert to examples of executive interference in European elections and designed the electoral process to be “the least favorable to intrigue and corruption.”
It’s not just that the president has no role in the electoral vote count. It is that the Framers would have understood any involvement of the incumbent in such a process as the opposite of official conduct. They would have seen it as a profoundly anti-republican arrangement that threatened the lawful transition of power by enabling the corruption of the count in the incumbent’s favor.
It follows that any president's discussion of the electoral vote count is, by definition, an unofficial act. On this question at least, the court’s ban on considering motives to distinguish official from unofficial conduct should not impede the government’s case.
It does not matter that the vice president has an official role to play in the process; his role does not change the fact that the president may not be involved. Criminally prohibiting a discussion between the vice president and the president about the electoral vote count does not threaten the president’s ability to do his job, because such a discussion can advance no legitimate executive branch interest.
In her concurring opinion, Justice Amy Coney Barrett made a similar point about the president’s alleged request that the Arizona House Speaker convene the state legislature to hear claims of electoral fraud in the state. As Barrett observed, “The president has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.”
July is the month in which the U.S. celebrates its independence from the British monarchy. In holding that the president is immune from criminal prosecution for any official act, the court has struck at the foundation of our anti-monarchical constitution. On remand, Judge Tanya Chutkan will determine whether Trump is immune from prosecution for his alleged efforts to pressure Vice President Pence to change the electoral votes.
We urge her to heed the historical lesson that the majority did not: that the Constitution was designed to ensure that the incumbent president has no official role to play in determining the next occupant of the Oval Office. No attempt to play such a role can be official conduct, and as such, Trump's attempt to do so should be wholly subject to criminal law.
Failure to allow prosecution of such conduct would violate the assurance given in 1788 by future Supreme Court Justice James Iredell to the North Carolina ratifying convention. “If [the president] commits any crime," he said, "he is punishable by the laws of his country.”
Jane Manners is an assistant professor of law at Temple Beasley School of Law. Melissa Lane is the Class of 1943 Professor of Politics at Princeton University.
