The Basic Finding of the Court

The Supreme Court in Trump v. United States held that presidents — present, past, and future — have immunity from criminal prosecution for their official actions.

There are many unsettling aspects to this decision.

 The starting point should be the Constitution. Read the Constitution. Read it again. No such immunity is in the Constitution’s text. Moreover, in our 230-year history, the Supreme Court has never held that such immunity existed. That is, until July 2024, when the Court discovered such immunity. Apparently, the Founders’ mistake has been corrected centuries later.

The Court held further that there is absolute immunity for “core” presidential actions, those where the Constitution gives “conclusive and preclusive” authority to the president. This immediately raises the question of what constitutes a “core” action. While indicating their list was not exhaustive, the Court asserted that the power to pardon, remove executive branch officials, and recognize foreign countries fell within the definition of core presidential actions.

This list is noteworthy for several reasons. First, the powers to remove officials and recognize foreign countries are not “core” enough to have been enumerated in the Constitution. They are not mentioned in the text. Instead, the president has conclusive and preclusive authority in these areas only because the Supreme Court, well after the Constitution was adopted, said so.

Presidential authority to pardon is in the Constitution but think about what absolute immunity means here. No matter how corrupt the motive for the act, an ex-president cannot be prosecuted for granting a pardon. Even if it could be proved that the president solicited $1 million for it, he is immune. [I am using “he” or “his” throughout for ease of reading.] The bribery laws now apply to everyone in the U.S. except one person.

The Court did say that immunity could extend only to “official” actions. The opinion did not give an authoritative test for separating the official from the unofficial, but it indicated that the scope of official acts is broad. Official acts, they write, are all actions within the “outer perimeter” of a president’s powers and duties. Only acts “manifestly or palpably” beyond his authority are unofficial or private. As you will see below, it is left to others to determine what the definition of “’manifestly or palpably’ beyond his authority” actually means.

When us ordinary folk think about core presidential powers, we probably think about the president as commander in chief, his role in foreign affairs, and his setting legislative priorities in taxation, healthcare, immigration, civil rights, and myriad other areas. Trump, like every president before him, was not prosecuted for any of these “core” areas. Moreover, he was not prosecuted for the core areas enumerated by the Court. He was not prosecuted for pardoning someone. He was not prosecuted for removing someone from the executive branch nor for recognizing a foreign country. Instead, he was prosecuted for trying to prevent the results of a valid election by seeking sham Justice Department investigations, pressuring a vice president to ignore his duties, urging state officials to “find” votes, assembling “electors” who have not been elected, and urging a throng to go to the Capitol where electoral votes were to be accepted. Would our founders have seen these as official presidential acts? The Court shoehorns them into official acts, but they were primarily, if not entirely, the acts of a candidate trying to retain his office. These unprecedented political acts, not the normal duties of a president, brought the unprecedented prosecution.

Can a President Commit a Criminal “Official” Action?

The president is never authorized by the Constitution or Congress to take a criminal action. You might think, then, that he cannot be acting officially if he commits a criminal act. Not according to this decision. So, for example, the Court stated that the investigation and prosecution of crimes is a quintessentially executive function. In 2020 Trump allegedly urged the Justice Department to act on bogus claims of election fraud. The Supreme Court concluded that even if Trump had sought sham investigations, even if his behavior was criminal –he is absolutely immune for this conduct because it falls within his executive function. At least when it comes to the president, even criminal acts can be official ones. This means that if Trump had ordered the arrest of duly elected electors so that they could not cast their votes, he would have had had immunity from criminal prosecution.

Is Urging Someone within the Executive Branch to Break the Law an Official Act?

The Court’s expansive notion of official actions is illuminated by its discussion of Trump’s alleged pressuring of Vice President Pence not to certify the valid electoral college results. Chief Justice Roberts writes, presumably with a straight face, that “our constitutional system anticipates that the President and the Vice President will remain in close contact regarding their official duties….” This is asserted without any citation. This is not surprising since there is nothing to cite. The Constitution nowhere suggests that this is a required or even a desirable facet of the relationship between the two. It is also historically inaccurate; there has often been little-to-almost-no contact  between a president and a vice president. Sometimes there has been outright hostility between them. Roberts continues that it is important for the president to talk about official matters with the Veep to ensure continuity in the executive branch and to advance the presidential agenda. It may be nice, or even desirable, for this to happen, but it is not a requirement in the Constitution.

The Court then concludes that whenever the president and the vice president discuss their official responsibilities, they engage in official conduct. Au contraire. Trump was not discussing any presidential duties when pressuring Pence. The Court admits that the president had no official role in the January 6 certification; it was the sole duty of the vice president. Even so, the Court held that Trump’s pressure on the vice president involved official presidential conduct. To repeat, the Court held that it was official conduct even though the president had no official role in the certification. An official act can, apparently, occur even when there is no official role or duty.

Okay. Now Things Get Complicated

Even if it had been an official act, Trump does not necessarily mean that he can’t be prosecuted for his attempt to get Pence to do something illegal. The Supreme Court stated that if a president commits a criminal act that is not within his core duties but is an official act, he may have absolute immunity or presumptive immunity. With presumptive immunity one assumes he has immunity until someone (a court) decides he doesn’t. This Court, however, chose not to determine the issue of immunity in this instance because it had no guidance from previous cases. No surprise there; there has only been one case raising the issue—this one. (N.B. There has been only one such case since the country began — this one.)

Nevertheless, the Court gave this muddy guidance: In its opinion the Court said that if an action has presumptive immunity, the prosecution must overcome the presumption by showing that its prosecution has no danger of intruding on the authority and functioning of the executive branch. As for Trump’s pressure on Pence, the Court averred that because the VP acts as President of Senate when certifying the electoral vote, this is not an executive branch function. The president plays no role in it, and thus, the Court said, prosecution based on this particular conduct may not pose a danger of intruding into the authority of executive branch. Then, without explaining how, maybe it will. With this mysterious pronouncement, the Court sent the issue back to the lower court to figure it out.

What is the Lower Court Supposed to Do?

The Court sent other matters back to the trial court that had been hearing the original case. In doing so, they are asking the lower court to determine immunity (or not) on several issues. Again, the Court offered only murky guidance. So, for example, Roberts stated that Trump had no official role in the selection of electors. On the other hand, the president has a role in enforcing federal election laws. Was the attempt to round up fake electors an official act, and if so, was presumptive immunity overcome? Take a whack at that one, trial court.

And this one. The Court said that a president has extraordinary power to speak to the public, but at times he may be speaking in an unofficial capacity as a party leader or a candidate. Were Trump’s actions on January 6 official acts, and if so, was presumptive immunity overcome? Chew on that, trial court.

Let me suggest a test that the trial courts might use: If someone outside the government could have done the same thing that an ex-president seeking immunity did, then those actions were not presidential acts. So, for example, a candidate who is not an incumbent might pressure a state Secretary of State to “find” votes or seek to assemble false electors with the implicit or explicit message that when he becomes president, he will remember who his friends and supporters were. A candidate who is not an incumbent could rile up a throng of his supporters in a public park urging them to prevent the certification of electors. If the candidate could be prosecuted for these actions, an ex-president should not be immune for them.

(Concluded July13)