AG Yost Urges U.S. Supreme Court to Adopt Legal Test for Presidential Immunity

Joe Lyons • March 21, 2023

(COLUMBUS, Ohio) — Ohio Attorney General Dave Yost and two other state attorneys general are urging the U.S. Supreme Court to establish a legal test for determining the limits of a “very broad” presidential immunity.

In an amicus brief filed today in Trump v. United States, Yost and his counterparts from Alaska and Wyoming argue that such a test is necessary because future prosecutions, both civil and criminal, implicating presidential immunity are likely to arise in the wake of this unprecedented case. Defining the extent of presidential immunity now, the brief says, would establish constitutional guardrails to guide future legal proceedings.

“A line of normal behavior has been crossed – the special counsel actually boasts in his own brief that a president has never before been criminally prosecuted,” Yost said. “In the same way that impeachment has apparently been normalized, it seems likely that we will see future cases in which a prosecutor charges a chief magistrate.”

Yost added that the framers of the Constitution “understood that a president cannot fulfill the oath of office without reasonable immunity from criminal charges. That immunity is very broad, but not unlimited – and the nation needs clear and steady-handed guidance from its highest court.”

In February, the Supreme Court agreed to decide in Trump v. United States whether – and, if so, to what extent – a former president is immune from criminal prosecution for conduct allegedly involving official acts during the former president’s tenure in office.

In the brief, Yost proposes a two-factor legal test that courts would apply in cases examining questions of presidential immunity:

The first factor would consider how closely an alleged criminal action is linked to the president’s core powers under Article II of the Constitution.

The brief notes how the diverse duties of the president translate to a wide range of situations that may require immunity from prosecution. Therefore, it says, the test should examine the relationship between the action and the president’s official responsibilities; the closer an action relates to a core presidential power, the stronger the case for immunity.

Under the second factor, courts would determine whether the urgency of the situation warranted the president’s actions. The brief argues that times of heightened urgency, such as war, call for a greater degree of immunity for the president.

In their brief, the attorneys general ask the Supreme Court to adopt this legal test and remand the matter for further proceedings and fact-finding.