Ask Jordan: Would Harris be immune from prosecution too?

“If Harris is elected, how would the Supreme Court ruling on immunity affect her as president regarding decisions in the future?”

— Charles Kuhn, Saratoga, California

Hi Charles,

The Supreme Court’s immunity ruling in Trump v. United States technically applies to criminal prosecutions against any former president. A difference between Donald Trump and Kamala Harris is that the decision was issued after Trump had already left office. So when Trump was president, he didn’t know that he would have the immunity that Chief Justice John Roberts and his Republican-appointed colleagues said he did in retrospect.

Whether Trump or Harris wins, the next president will know that they have at least some immunity for their official acts.

To be sure, the extent of that immunity isn’t clear. Roberts’ ruling was relatively vague. It said that former presidents have absolute immunity for “core” presidential acts, presumptive immunity for all other official acts, and no immunity for unofficial acts. That curbed at least some of special counsel Jack Smith’s federal election subversion case against Trump, but how much of the indictment survives remains to be seen during further litigation. Of course, we’ll likely never know the answer if Trump wins, because he could then get the case dismissed.

So, how the ruling affects Harris if she’s elected is somewhat up to her. If she isn’t intent on using her presidential power to commit crimes, then it might not make much of a difference. But if she’s tempted to, say, use SEAL Team 6 to kill political rivals, could she avoid prosecution for that after she leaves office?

Maybe. Roberts’ ruling didn’t bother to eliminate that possibility.

But even though the ruling technically applies to prosecutions of any former presidents, one can’t ignore that it arose in the context of Trump and the Supreme Court he helped create. If Harris engages in conduct that isn’t precisely what the court has already said would be immune in Trump’s case, then she shouldn’t feel safe from prosecution. Even then, one never knows what the court would do.

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