‘A Ludicrous Decision’: Legal Experts Discuss Trump v. U.S. Immunity Ruling at HLS Talk

Legal experts gathered Wednesday at Harvard Law School to discuss the causes and effects of Trump v. U.S., a case that granted U.S. presidents immunity from prosecution for all administrative acts after the Supreme Court issued a 6-3 decision in favor of Trump in July.

The panel featured former White House Counsel to Barack Obama W. Neil Eggleston, HLS Professor of American Legal History Michael Klarman, visiting HLS Professor Richard M. Re ’04, and Boston University law professor Jed Shugerman.

Re opened the event and said his primary concern was the ambiguity of the court’s final ruling.

“It’s a very murky opinion in its holding,” he said. “I read the opinion as quite indeterminate in a lot of critical ways.”

Eggleston said that as a result of the ruling, he doubts the current Supreme Court will take any action to hold Trump accountable during his second term.

“I’m much more skeptical about it, and I’m very much more skeptical that this Supreme Court is poised to intervene anti-Trump,” he said.

While the entire panel agreed that the case’s outcome was a victory for President Trump, Eggleston said that former President Biden also benefited significantly from the ruling.

“The person who benefited most from this opinion is President Trump, and the person who benefited second most is President Biden,” Eggleston said. “Because without this opinion, he most certainly would have been subject to investigation and prosecution by the Trump administration.”

Shugerman said he disagreed with Eggleston’s claim, adding that the court is only likely to enforce the decision in order to protect a President it aligns with ideologically — like Trump.

“Biden is not necessarily the winner here,” Shugerman said. “The immunity decision is not a get-out-of-jail-free card for any president — it’s just, who has five or six justices on the court gets to decide who’s immune based upon the way that presumptive immunity gets litigated.”

During the question-and-answer portion of the event, one attendee asked the panel, in reference to Justice Sonia Sotomayor’s dissent, whether the President would be above the law if they were to order SEAL Team 6 to assassinate a political opponent.

Re said he disagreed with Justice Sotomayor’s hypothetical situation in the first place, saying there is no clear answer to the question.

“It’s not clear, and that means I’m disagreeing with Justice Sotomayor’s very powerful dissent, because she makes it seem as though it is clear,” he said. “She’s doing another classic move for people in dissent.”

Kladerman agreed, pointing to the president’s usual military discretion.

“If the president has a discussion with his military and tells them to do something, I think that’s absolutely protected,” he said.

Panelists repeatedly questioned the Supreme Court’s integrity throughout the event. Shugerman claimed the root cause of this decision is the polarization and divisiveness that preceded it, including the dispute between Biden and Trump.

“The only way to understand this opinion is that it was a partisan reaction to partisan prosecution,” he added.

Still, panelists argued that this decision was out of line. Eggleston said he took issue with Chief Justice John G. Roberts Jr. ’76 “writing as if” he were 19th century Supreme Court Chief Justice John Marshall.

“President Trump was our 45th president. We’ve been through this,” he said.

Klarman said extensive delays in releasing the decision prevented any chance of Trump’s prosecution before the election, thereby influencing its outcome.

“They issued the decision on the last day of the term, and that effectively made it impossible regardless of what their motive was,” he said. “It’s a ludicrous decision based on text, original understanding, history, and tradition, and I don’t think anybody disagrees with that.”

The panelists agreed that the ruling has given President Trump greater leverage in enacting his agenda since taking office.

“We’ve already seen this opinion being weaponized by the Department of Justice in various litigations,” Eggleston said.

“They’re raising it in the Alien Enemies Act litigation,” he added. “Essentially saying, as a result of this opinion, foreign affairs is an exclusive and preclusive power of the president, and therefore, ‘Courts, get out of my way.’”