Writing a Rule for the Aegis: Subordinate Criminal Immunity After Trump v. United States

abstract. In Trump v. United States, the Supreme Court immunized Presidents from criminal prosecution for their official acts. Another question now looms: could thousands of executive-branch officials claim that same protection when implementing criminal presidential directives? History suggests presidential immunities rarely remain cabined within the Oval Office. When courts have created special protections for Presidents, those protections have tended to metastasize, reaching officials throughout the executive branch. Criminal prosecution thus stands today as one of the last serious constraints on executive-branch malfeasance. Trump threatens this guardrail.

This Note takes seriously the Court’s functionalist approach to immunity and its increasingly expansive view of the unitary executive. Under this framework, a bad-man President’s criminal conduct becomes presumptively immune simply by flowing through official channels, potentially bringing whomever it touches under its golden shield from prosecution.

Indicted officials have already started raising these defenses. In this Note, I highlight the risk of creeping criminal immunity and advocate for its rejection on a straightforward basis: unconstrained governance existentially undermines the rule-of-law interests that necessitate vigorous executive authority in the first place. In its constructions of immunity, the Court has committed to consequentialist analyses of the exercise of power. Let it also consider the consequences of lawlessness.

author. J.D. expected 2026, Yale Law School; B.A. 2021, University of Chicago. I owe special thanks to Stuart Delery for his guidance and insights at the early stages of this project and for the encouragement to develop it further. For their generous feedback and helpful conversations along the way, I thank Aziz Huq, Nicholas Parrillo, Cristina Rodríguez, and Garrett West. Many thanks as well to James Kunhardt, Nellie Conover-Crockett, Matt Beattie-Callahan, Ako Ndefo-Haven, Jeremy Thomas, and the entire editorial team of the Yale Law Journal, whose hard work and earnest engagement with this piece improved it immeasurably. And finally, I am grateful to my parents, Jason and Amy, and to my brothers, Sean and Beau—from whom I learned a thing or two about where the buck stops. Any errors or omissions are mine alone.

“[L]ife looks really shitty from behind bars . . . . And, if you guys do anything that’s illegal, I don’t mind having you in prison.”

—General Mark Milley1 warns Kash Patel2 and Ezra Cohen3 about subverting the results of the 2020 election.4

Introduction

“Immune. Immune, immune, immune.” This drumbeat echoes through Justice Sotomayor’s dissent as she prophesizes the “nightmare scenarios” that could follow from the Supreme Court’s grant of criminal immunity to the President in Trump v. United States.5 Political assassinations, military coups, bribery, and all other variety of high crimes and misdemeanors committed under the guise of official responsibility to earn a shield from prosecution. The refrain of the dissenting Justices was grim. But the majority paid little heed to their concerns. Chief Justice Roberts instead asserted in his majority opinion that any fears related to the abuse of power were outweighed by the unacceptability of the counterfactual world: an enfeebling of the presidency that would occur if future Presidents were “unable to boldly and fearlessly carry out [their] duties” for fear of criminal prosecution.6

This Note argues that the Court’s decision, however, reaches beyond the future occupants of the Oval Office and threatens far more than presidential accountability alone. While the majority claimed to immunize only the President, the logic that drove its decision—warding off the chilling effects of prosecution on executive vigor—applies with similar force to subordinates whose cooperation is essential to presidential action. The Court’s methodology and motivation, I contend, open the door to a follow-on criminal immunity for subordinate executive officials, transforming what was intended as protection for one office into a shield that could place thousands beyond the reach of criminal law.

To understand why this doctrine is at such great risk of slippage, one must first unpack the flawed functionalism forming Trump’s analytical backbone. “[I]mmunity,” the Court claimed, “is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the president to carry out his constitutional duties without undue caution.”7 At first glance, perhaps a compelling proposition. But context matters, and so it is worth recalling the profane genesis of this landmark case.

Donald Trump was not criminally indicted due to some misstep made in overzealousness while taking care that the laws be faithfully executed. He was charged with orchestrating a sprawling conspiracy to overturn the 2020 presidential election, enlisting or attempting to enlist a cadre of subordinate officials—from senior Justice Department personnel to the Vice President—to subvert the peaceful transfer of power.8 Special Counsel Jack Smith’s original indictment catalogued a litany of criminal acts: pressuring state officials to “find” nonexistent votes, attempting to assemble fraudulent slates of electors, and urging Justice Department leadership to open sham investigations and falsely declare the election corrupt.9 These acts culminated in the events of January 6, 2021, when, after a presidential exhortation to “fight like hell,” a mob stormed the Capitol as Congress attempted to certify electoral votes.10 And as the chaos continued, the President, taking advantage of the moment, attempted to convince a set of Senators—who had, hours before, been evacuated to avoid the violent mob—to delay the certification of the election.11

Following his indictment, Trump sought dismissal of the charges against him, arguing that his acts fell within the scope of his official presidential duties and thus enjoyed absolute immunity from prosecution.12 The district court rejected this claim, concluding that “[f]ormer Presidents enjoy no special conditions on their federal criminal liability.”13 The D.C. Circuit affirmed.14 Only when the Supreme Court intervened, four months before a presidential election featuring the defendant as a candidate, did the logic, text, and history of presidential accountability yield to the then-former President’s theory.15 And thus, the doctrine of presidential criminal immunity was born.

The Court’s approach exemplifies, on its face, legal functionalism—a methodology that prioritizes institutional purpose and practical concerns about governance above text or history.16 Rather than anchoring immunity in constitutional text or Founding Era practice, the Trump majority divines it primarily from an apprehension about “distort[ing] Presidential decisionmaking” and “risk[ing] . . . the effective functioning of government” under “a pall of potential prosecution.”17 This approach reflects functionalist generality shifting, where the Court overvalues what it understands to be the general purposes of the Constitution (here, an energetic executive) while undervaluing the specific requirements of constitutional text that might otherwise constrain presidential power.18 This same functionalist reasoning risks expanding presidential immunity into a far broader form of derivative criminal immunity for executive-branch officials writ large.

A doctrine with the potential to upend traditional checks and balances demands a clear perimeter to prevent unlimited expansion. The majority dismissed the concerns of the dissenting Justices, who highlighted the decision’s potential boundlessness,19 as “fear mongering,” contending that the impact of their decision would be blunted by separation-of-powers principles and the Court’s precedent.20 However, the murky tests the Court established—distinguishing between “core,” “official,” and “unofficial” acts while outright forbidding any inquiry into presidential motive that could elucidate the nature of the act in question—seem destined to expand, rather than constrain, immunity.21

The Court’s approach also has such potential to spiral because it is asymmetrical: it deploys functionalist concerns to justify expansive immunity while falling back on a formalist analysis of constitutional provisions, like the separation of powers and the concomitant finite scope of the President’s authority, as supposed limiting principles.22 But this is not enough. In its teleological prioritization of unbridled executive action over specific, formal constitutional constraints, the Court has established a methodology inherently resistant to the formal boundaries that could be imagined as its strictures. Any remaining constraints predicated on constitutional text or Founding Era understandings of accountability are demarcations on paper alone; those, too, are at constant risk of being gerrymandered to reside within the ambit of presidential prerogative.23

Yet some scholars have argued that existing safeguards—formal checks—will prevent rampant lawlessness in practice.24 They note that, in prior episodes of executive malfeasance, the threat of prosecution deterred subordinate officials from carrying out criminal presidential impulses.25 So too here, they claim, will subordinate liability deter presidential misconduct—by making its actualization too personally costly for executive officials to stomach.26 This solution is admittedly appealing in its elegance: if the President cannot be prosecuted, hold the subordinates accountable instead and pray that the threat of a prison sentence outweighs their fealty. After all, the President is only one person,27 relying on scores of executive-branch officials to implement his or her directives.28 There will always be some legally exposed officer where the buck of criminal liability will stop and the deterrent effect of prosecution and incarceration can kick in.29 But such a compromise, while tidy on paper, sidesteps the reality of how this Court understands presidential power.

The Roberts Court has advanced a muscular vision of presidential control over the executive branch.30 Executive officials are increasingly considered to be instruments of the President who can be removed by the President at any point, for any reason.31 This, the Court argues, is necessary for an executive branch that functions on behalf of a President duly elected by the people.32 The modern Court has thus emphasized that subordinate frustrating of presidential will is inapposite to the constitutional design and competing intrabranch mandates are affronts to the President’s authority. But in contrast to the functionalism of presidential immunity, theories of the unitary executive tend to be formalist—and specifically originalist—in nature.33 The Court’s string of unitary-executive precedents over the past two decades has accordingly staked its credibility primarily on constitutional text and Founding Era practice.34 But now, atop this formalistic, text-and-history-driven structure, the Court has superimposed an intensely consequentialist and ahistorical immunity which necessarily lacks the limiting principles—the checks and balances—that might have been built into an immunity doctrine at the Founding.35

Why, then, would this Court, with its deepening commitment to a vigorous and unitary executive, accept—much less embrace—the premise that subordinate disobedience for fear of criminal prosecution could serve as a meaningful check on presidential power?36 Having fashioned from whole cloth a doctrine of presidential criminal immunity to prevent excessive executive trepidation, one struggles to imagine this Court tolerating that same chilling effect simply shifting one level down the chain of command.37

In this Note, I argue that the interweaving of these threads in Supreme Court jurisprudence threatens to further unravel traditional mechanisms of executive-branch accountability in ways that extend far beyond the President himself. The Court’s robust vision of the unitary executive—wherein the President exercises executive duties through a set of faithful officers whose conduct he or she controls—combined with a functional approach to immunity may compel a form of derivative criminal immunity for subordinates implementing presidential directives. If presidential immunity exists to prevent the distortion of executive decision-making, and if subordinate officers are merely implementing the President’s constitutional authority, then dangling the threat of prosecution over the heads of those subordinates would create precisely the paralysis of presidential power that immunity was designed to prevent. The Roberts Court, in “writing a rule for the ages,”38 has opened the door to a dangerous follow-on doctrine: when subordinates act to implement directives that would be criminal but for the President’s immunity, they too become shielded from criminal liability. Not just one man above the law, but thousands.

Criminal immunity for the President’s subordinates is not merely theoretical. In the wake of Trump, executive officials are already invoking the decision’s logic to claim protection from criminal prosecution. Former White House Chief of Staff Mark Meadows, indicted for his role in attempting to overturn the results of the 2020 election, has argued in both Georgia and Arizona that presidential immunity must extend to subordinates, contending that holding subordinates accountable would deter “enthusiastic service,” chill officers from carrying out their duties, and distort presidential decision-making.39 Similarly, Jeffrey Clark, the acting Assistant Attorney General who sought to have the Justice Department falsely declare the 2020 election corrupt, has sought dismissal of professional disciplinary charges by arguing that Trump’s recognition of absolute presidential immunity for discussions with DOJ officials requires immunity for those on the other side of the conversation.40 Even the “fake electors” have invoked derivative immunity arguments in their criminal proceedings.41

Members of the federal judicial bench have already signaled some receptivity to these arguments, writing that Trump’s concern about executive decision-making being “distorted by the threat of future litigation” provides “additional support” for protecting officers implementing presidential directives.42 These early claims reveal derivative immunity not as a distant possibility but as an active development, making it essential to understand the historical patterns and functional variables that will determine whether such arguments succeed and how far they might extend.

This Note proceeds in four Parts. Part I explores why the criminal prosecution of executive officials remains a critical backstop against abuse of power as other mechanisms of personal accountability have eroded. Part II examines the phenomenon of immunity creep, where doctrines designed to shield the President have trickled down to subordinates, and revisits Trump v. United States in light of this history. Part III turns to the ongoing invocations of derivative immunity in the lower courts before engaging with counterarguments that derivative immunity is, in various formulations, impossible, irrelevant, or essential. Finally, in Part IV, I sketch three judicial interventions that could reject or constrain subordinate immunity. Throughout, I argue that while Trump’s reasoning threatens to dismantle executive-branch accountability, neither law nor prudence counsel completing the transformation.