Understanding The Supreme Court’s Immunity Decision

By KeithDB | 2 July 2024
Daily Kos

(Credit: YouTube / screengrab)

Today the Supreme Court ruled that a broad array of criminal conduct by a President cannot be prosecuted because the royal office confers immunity. Under this ruling there are three categories of Presidential conduct for which different rules for criminal immunity apply.

1. Core Power Presidential Acts.

Presidential acts that are within “core constitutional powers” of the President involve expressly articulated powers of the Presidency, such as acts as Commander in Chief or the granting of pardons. They also include directing the executive branch in its activities. Such core acts enjoy absolute immunity.

In this case, the Court said Trump’s efforts to enlist members of his Justice Department in a conspiracy to have the DOJ issue a letter to state legislators lying about the DOJ finding widespread fraud is such a core power and is absolutely immune.

2. Other “Official Acts.”

These are acts of the President, falling outside such core powers, but still part of his “official acts” as President. “Official acts” are defined, incredibly broadly, as encompassing anything “within the outer perimeter of his official responsibility.” Such acts now enjoy a “presumption” of immunity. To proceed the prosecution must rebut that presumption.

Further that presumption is strong and the standard for rebutting it daunting with absolutist language. To overcome this presumption prosecutors must establish that “applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” So the prosecution has to prove a negative to overcome that broad presumption. Presumably the “no danger” requirement means there can be no concern of intrusion into the authority and functions of the executive branch.

In this case, the Court views Trump’s conversations with Pence, attempting to get him to throw out electoral votes, as within this category. For that reason that question is remanded to the District Court to determine if the prosecution can overcome that daunting presumption.

3. Unofficial Acts.

The final category are “unofficial acts” which enjoy no immunity. The court does not define “unofficial acts” other than it is conduct beyond “outer limits” of his duties as described above. Further, the Supreme Court says courts cannot even consider the President’s motives when deciding whether an act is official or unofficial. Thus, even the most corruptly motivated of acts are protected by the court when reviewing whether the act was official or unofficial.

The court does not give a single example of anything in the current charges that fall in the category of unofficial acts. Instead, it provides several, that it says might be, and therefore remands it to the lower court to resolve under the standards that are not articulated.

An example, was Trump’s role in the fake electors scam. The court says whether that was official, and entitled to presumptive immunity, or unofficial with no immunity, is up to the trial court to resolve now on remand, all of which can then be appealed.

Even if a court finds a particular act non-immunized unofficial conduct then at trial no evidence of immunized conduct may be entered even to establish motive, knowledge or intent behind the non-immunized conduct, further hamstringing such prosecutions.

The Constitutional Basis

You may wonder where this elaborate Presidential Immunity Clause of the Constitution is found. You will find not a single word in the Constitution conferring such immunity, and the Supreme Court’s decision cites none. Instead, this court mocks the notion that any actual “specific textual basis” is required to establish this immunity. The Supreme Court simply imposes its judgement that the nature of Presidential power “requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office.” As discussed above that “some immunity” turns out to be a lot of immunity.

Put simply, the majority of the court fabricates this presidential immunity because the majority of justices just think it is a good idea for the country. There is no interpretation of law or the Constitution here. Just justices filling in what they deem to be gaps in our Constitution. In short, this is the essence of judicial activism.

In closing I will simply quote the conclusion of Justice Sotomayor’s dissent:

The majority’s single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint . . . Never in the history of our Republic has a President had reason to believe that he would be immune from criminal prosecution if he used the trappings of his office to violate the criminal law. Moving forward, however, all former Presidents will be cloaked in such immunity. If the occupant of that office misuses official power for personal gain, the criminal law that the rest of us must abide will not provide a backstop. With fear for our democracy, I dissent.

Two of the justices deciding this case had wives who supported the very insurrection the President was charged with inspiring. With fear for our democracy, I post this article.

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