Ask Jordan: Does presidential immunity extend to subordinates who carry out illegal orders?

“If Donald Trump defies court orders because the Supreme Court said he cannot be prosecuted for actions he takes as president, could those people who carry out his illegal requests be prosecuted or fined even though they are acting on his orders?” — Kit Read

Hi Kit,

Maybe.

The Supreme Court’s 2024 ruling in Trump v. United States only dealt directly with criminal immunity for presidents, holding that they have at least presumptive immunity for all official acts, as well as absolute immunity for acts within their “conclusive and preclusive” constitutional authority.

What all that means in practice hasn’t been fully fleshed out. It would take a follow-up case to clarify the ruling’s limits, and it’s unclear if or when such a case will come.

At any rate, the court focused on presidents in that ruling. It did not grant immunity to aides acting on the president’s behalf.

Yet, while arguments have been made against subordinate immunity, it’s technically an open question that the justices haven’t decided one way or the other.

So the answer to your question at the moment is: maybe.

But you might wonder: What could the argument be for immunizing presidential underlings?

One scholarly account argued that the logic of the immunity ruling “renders the President’s subordinates absolutely immune for a potentially broad range of official acts, even if those acts are otherwise unlawful.” That’s because if the president has complete power over executing the law, then, the argument goes, subordinate actions that implement that power are lawful, as opposed to being unlawful but immune from prosecution.

As with clarifying the immunity ruling’s limits as it applies to presidents, whether the Supreme Court will decide the subordinate immunity question depends on the court taking an appeal that raises that issue in the future. And as with presidential immunity itself, there is no clear candidate for an appeal the court would take to answer that question.

Either way, if a president wants to ensure that any of his henchmen won’t be federally prosecuted, he could always pardon them.

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