Official & Unofficial Action


The U.S. Supreme Court’s decision in Trump v. United States, issued yesterday, concerns the extent to which the president is immune from criminal prosecution. 

The Supreme Court’s majority judgment relies on a distinction between a president’s official and unofficial conduct, holding that:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The whole decision is here. I encourage anyone interested in discussing the decision to read at least the first eight pages of it (the summary, or “syllabus”).

Of particular concern to the Court is the extent to which prosecution and the threat of prosecution would inhibit or prevent presidents from acting in ways that, they say, the framers of the Constitution envisioned:

The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472… They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.”… Appreciating the “unique risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” the Court has recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.”

Previously, in  protecting the President from civil lawsuits

The Court’s “dominant concern” was to avoid “diversion of the President’s attention during the decisionmaking process caused by needless worry as to the possibility of damages actions stemming from any particular official decision.” 

But

when prosecutors have sought evidence from the President, the Court has consistently rejected Presidential claims of absolute immunity.

Turning to the matter of criminal prosecution, the Court’s majority says:

Criminally prosecuting a President for official conduct undoubtedly poses a far greater threat of intrusion on the authority and functions of the Executive Branch than simply seeking evidence in his possession. The danger is greater than what led the Court to recognize absolute Presidential immunity from civil damages liability—that the President would be chilled from taking the “bold and unhesitating action” required of an independent Executive… Although the President might be exposed to fewer criminal prosecutions than civil damages suits, the threat of trial, judgment, and imprisonment is a far greater deterrent and plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages. The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,”…  raises “unique risks to the effective functioning of government”.

So, beyond the president’s “absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” there is also “at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility.” This is required, says the Court, “to safeguard the independence and effective functioning of the Executive.”

But what about actions beyond that “outer perimeter”?

As for a President’s unofficial acts, there is no immunity. Although Presidential immunity is required for official actions to ensure that the President’s decisionmaking is not distorted by the threat of future litigation stemming from those actions, that concern does not support immunity for unofficial conduct… The separation of powers does not bar a prosecution predicated on the President’s unofficial acts.

The Court acknowledges that a lot hinges on the distinction between official and unofficial acts:

The first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from unofficial actions.

The Court offers some guidance on how to interpret this distinction, beginning on page 4 of the decision, but also continuing beyond its introductory section. Of particular interest may be this passage:

In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose… Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.

In her dissent (starting on page 68 of the PDF of the decision), Justice Sotomayor, joined by Justices Kagan and Jackson, wrote:

Today’s decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law… Because our Constitution does not shield a former President from answering for criminal and treasonous acts, I dissent.

Regarding the majority’s reasoning, she says:

The majority makes three moves that, in effect, completely insulate Presidents from criminal liability. First, the majority creates absolute immunity for the President’s exercise of “core constitutional powers.” Ante, at 6. This holding is unnecessary on the facts of the indictment, and the majority’s attempt to apply it to the facts expands the concept of core powers beyond any recognizable bounds. In any event, it is quickly eclipsed by the second move, which is to create expansive immunity for all “official act[s].” Ante, at 14. Whether described as presumptive or absolute, under the majority’s rule, a President’s use of any official power for any purpose, even the most corrupt, is immune from prosecution. That is just as bad as it sounds, and it is baseless. Finally, the majority declares that evidence concerning acts for which the President is immune can play no role in any criminal prosecution against him. See ante, at 30–32. That holding, which will prevent the Government from using a President’s official acts to prove knowledge or intent in prosecuting private offenses, is nonsensical…

The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . presumptive,” and quite possibly “absolute.”

She disputes the majority’s account of  “the danger ‘of intrusion on the authority and functions of the Executive Branch'” in the absence of immunity (beginning on p.14 of her dissent). Wrapping up several pages of argument, she writes:

What exactly is the majority worried about deterring when it expresses great concern for the “deterrent” effect that “the threat of trial, judgment, and imprisonment” would pose? Ante, at 13. It cannot possibly be the deterrence of acts that are truly criminal. Nor does it make sense for the majority to wring its hands over the possibility that Presidents might stop and think carefully before taking action that borders on criminal. Instead, the majority’s main concern could be that Presidents will be deterred from taking necessary and lawful action by the fear that their successors might pin them with a baseless criminal prosecution—a prosecution that would almost certainly be doomed to fail, if it even made it out of the starting gate.

There is a considerable “public interest” that speaks in favor of allowing the federal criminal prosecution of a former President, Sotomayor says, but the majority’s ruling threatens that possibility:

The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “‘take Care that the Laws be faithfully executed’” among the core functions for which a former President supposedly enjoys absolute immunity. Ante, at 20 (quoting Art. II, §3). That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution. Were there any question, consider how the majority applies its newly minted core immunity to the allegations in this case. It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” Ante, at 21. That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct. Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered. 

In a striking passage, Sotomayor describes what she takes to be the general implications of the majority’s decision:

Looking beyond the fate of this particular prosecution, the long-term consequences of today’s decision are stark. The Court effectively creates a law-free zone around the President, upsetting the status quo that has existed since the Founding. This new official-acts immunity now “lies about like a loaded weapon” for any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation. Korematsu v. United States, 323 U. S. 214, 246 (1944) (Jackson, J., dissenting). The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law. 

Discussion welcome.

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David Austin
17 days ago

Elizabeth Anderson comments on the decision’s motivation and consequences. She begins:

… as Justice Sotomayor rightly observes in her blistering dissent, the majority’s decision that the President enjoys absolute immunity for his official acts has “no firm grounding in constitutional text, history, or precedent” (quoting Alito’s characterization of Roe v. Wade in Dobbs).

So let us set aside the law, which has nothing to do with how the Court majority arrived at its opinion. I am here to explore the majority’s mindset, which leads it down the path to utter lawlessness, and opens the door to dictatorship. Justice Roberts disparages this worry as overblown, much as Hindenburg imagined that Hitler was a mere blowhard, no real danger to the Republic.

At the end of the posting, Anderson describes the majority’s mindset as, “fascist or fascist-adjacent.”

In response to a comment:

The opinion appears to grant “absolute immunity” only to acts within the president’s “core constitutional powers,” not to “official acts” in general, as Trump had argued.

Anderson replies, emphasizing a point in Sotomayor’s dissent:

In the hands of the Court majority, this will end up being a distinction without a difference, as Sotomayor points out in dissent. All official acts, the Court says, are entitled to at least presumptive immunity. Who can doubt that, with the thumb so heavily on the scales in favor of Presidential impunity, that the presumption will be in practice irrefutable? Particularly since the Court also bars the kind of evidence that would typically be required to prove otherwise–a President’s discussions with others in the Executive Branch.

Fritz Allhoff
Fritz Allhoff
Reply to  David Austin
17 days ago

The majority opinion *does not say* that “the President enjoys absolute immunity for his official acts” (quoted from above). Rather, it depends whether those official acts are underwritten by “core constitutional powers”; if so, immunity may be absolute but, if not, immunity is only presumptive. This is obviously an important distinction. (Note someone else has made this point on her blog post, as well.)

Mark Raabe
Mark Raabe
Reply to  Fritz Allhoff
17 days ago

You need to review how strong that presumption is, and how hobbled anyone opposing the presumption now is — motives are out of bounds, as is any evidence related to “official” acts, even if only unofficial acts are at issue. Trump can now claim that his NY conviction for pre-Presidency private acts must be set aside because post-act public communications made while he was President were put into evidence.

benjamin s yost
benjamin s yost
Reply to  Fritz Allhoff
16 days ago

Presumptive immunity can be overridden only if prosecutors can show that prosecution will not impinge on the power and/or functioning of the executive branch. That is an extraordinarily high bar. For all practical purposes, presumptive immunity is absolute. The distinction is meaningless, especially given SCOTUS’s fanatical obsession with executive power.

Michael Kremer
Michael Kremer
Reply to  Fritz Allhoff
15 days ago

This point is addressed in the very comment you are replying to.

Michel
17 days ago

Are there other democracies where the head of government is immune from criminal prosecution for “official” acts? I just find it hard to believe that it’s a necessary protection in the first place.

Fritz Allhoff
Fritz Allhoff
Reply to  Michel
17 days ago

Thirty-two countries–not all of which are democracies–have some sort of immunity from prosecution for former presidents. There are rare cases where that’s absolute immunity (e.g. Kazakhstan, Kyrgzstan, and Turkmenistan), with the rest being some sort of presumptive/qualified immunity. Note that this thirty-two doesn’t include monarchies, but rather only for *presidents*. Various monarchies also confer immunity upon departed leaders, though whether rule was abdicated could be relevant.

Citation:
https://maint.loc.gov/law/help/immunity-from-prosecution/index.php#:~:text=In%20some%20countries%2C%20such%20as,office%2C%20including%20after%20leaving%20office.

Michel
Reply to  Fritz Allhoff
17 days ago

Thanks. That’s… Not a very impressive list of countries, as these things go.

Magnus
Magnus
Reply to  Michel
16 days ago

Setting aside the odd chauvinism of your comment, you should go over the list again: there are plenty of “impressive” countries that provide a substantive degree of executive immunity. As two examples, see Iceland and Ireland (these being in addition to France, which has already been mentioned elsewhere in the comments).

Michel
Reply to  Magnus
16 days ago

Yes, I understand, which is why I said ‘as these things go’. The point I am making is that this is (1) not a large list, and (2) Russia and France aside, not a list of world powers. Which suggests that this kind of immunity is hardly necessary for (1) governing a country, and (2) governing a world power.

So: why, exactly, should we grant the premise that it’s necessary?

Jo E
Jo E
Reply to  Magnus
16 days ago

If his comment is “chauvinistic” then why do you immediately reiterate its point? The upshot, as you well know, is that not many advanced democracies have this immunity. That seems like a perfectly relevant thing to point out and it’s substantiated by the list.

Nicholas Denyer
Nicholas Denyer
Reply to  Michel
17 days ago

The President of the USA is not only head of government but also head of state. In this he is rather like the President of the French Republic, who “shall incur no liability by reason of acts carried out in his official capacity”. See Article 67 of https://www.constituteproject.org/constitution/France_2008

Michel
Reply to  Nicholas Denyer
17 days ago

Yes, I know. But I wanted to exclude monarchies, which may well have weird immunities, even if the monarch has no real power. So, e.g., I was especially thinking about PMs in parliamentary systems.

Nicholas Denyer
Nicholas Denyer
Reply to  Michel
15 days ago

You should be able to find answers to your questions in the comprehensive collection of constitutions at https://www.constituteproject.org/

Fritz Allhoff
Fritz Allhoff
17 days ago

I think the decision was about what most watchers were expecting: a distinction between official and non-official acts, with (at least presumptive) immunity attaching to the former, and not the latter. For me, that makes intuitive sense. Take parallels with law enforcement, for example. Police often have “qualified immunity,” but that only goes so far (e.g., Chauvin et al. still go to prison, because their use of force was excessive). The issue here isn’t really so much the structure of that analysis, but rather line drawing: what’s official? What isn’t? What “core constitutional powers” enjoy “absolute” immunity, and which (peripheral?) constitutional powers enjoy presumptive immunity?

Consider Justice Sotomayor’s examples, say when the President: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” I don’t see why the President would be immune in any of these cases, and I doubt the majority does, either. These are not “official” exercises of power, in any way that I could understand the word “official.” And certainly not “core constitutional powers,” which are the only ones that would even track absolute immunity (i.e., where’s the Constitution say he can do any of these things?). But sure, this is where the action is.

The dissent–and Schumer et al.–talk about how this opinion makes the President a “king,” places him “above the law”, and so on. But how is that true? The President is *not above the law* with regards to *unofficial* acts. It’s not even clear he’s “above the law” with regards to *official acts*, depending on whether the immunity is absolute or presumed (i.e., if it’s presumptive immunity for official acts, that’s still defeasible and so he’s potentially still liable). So I basically don’t even think that the liberal narrative sounds right.

And, while this is maybe more controversial, consider another point: this isn’t about Trump. It’s about the nature of the presidency. Conservatives will always favor a stronger executive than liberals, maybe especially because of commander-in-chief powers. If we set aside the implications for Trump, and instead take a dispassionate view of how the *presidency* should work, I don’t think this opinion says much that’s super controversial (i.e. that’s my opinion, not necessarily yours!). Now lower courts have to figure out January 6th, what was official/unofficial, and so on, but I’d think those would have been the obvious things they would have needed to figure out in the first place.

Mark Raabe
Mark Raabe
Reply to  Fritz Allhoff
17 days ago

If you re-read the opinion, you might see that you’re mistaken about Sotomayor’s “Takes a bribe in exchange for a pardon” example. The majority is quite clear that the President’s pardon power falls under the “absolute immunity” category. So she’s right.

As for the Seal Team 6 and military coup examples, those both arguably fall under the President’s preclusive authority as Commander-in-Chief. Even if you don’t agree, have no doubt that Trump or any similar autocrat would make this argument to claim absolute immunity and refuse to even send anyone to show up in court to respond to charges. (This does make Jan. 6 an interesting determination, since it was an attempt at a paramilitary, rather than military, coup.)

Yes, my intuition matches yours: these things ought to be considered obviously wrong and violations of law, and for that reason ought not to be considered “official” exercises of power. But one of the reasons this opinion strikes so many as so badly reasoned is that it takes a clear means-rather-than-ends approach to determining what is official. A prime example: per this Court, a President’s act is “official” if it involves communicating with the Attorney General, even if the intent of that conversation is to direct something that would otherwise be illegal. And the intended end in many cases can’t be proven if motives can’t be inquired into and relevant evidence is barred, as the Court has now ruled.

And then there’s the Court’s use of the “Take Care” clause as a ground for this expansive view of “official” acts. One would think that the most basic way one would “take Care that the Laws be faithfully executed” would be to ensure that one was not breaking the Laws oneself. But that is not the Court’s view (this time — previous unmentioned cases like Humphrey’s Executor differ). So the means (running the Executive’s law-enforcement capability) override the ends (using it to try to break the law).

And finally, this sentence (Opinion, page 18): “Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law.”

Dave Millar
Dave Millar
Reply to  Fritz Allhoff
17 days ago

I don’t think it helps to, “set aside the implications for Trump” and “take a dispassionate view of how the presidency should work.” As long as there is potential for “a Trump” to take office (and that threat of a president who has stacked the SCOTUS in his ideological favor is always there), the presidency should work in a way that *removes* incentives for self-or-party-serving, extra-legal actions. If, as you say, “It’s not even clear [Trump] is “above the law” with regards to *official acts*, then why should the Court stipulate that he is?

Animal Symbolicum
Reply to  Fritz Allhoff
17 days ago

(1) Why do you think it’s better for the lower courts, instead of the highest court, to determine which official actions enjoy absolute immunity and which actions enjoy presumptive immunity?

(2) Why doesn’t ordering a military officer to assassinate a political rival count as official? Isn’t it more like this?: ordering a military officer to assassinate a political rival actually is official, but it’s an action for which there is only presumptive immunity, and any prosecutor therefore needs to prove that prosecuting the action won’t upset the balance of power.

Fritz Allhoff
Fritz Allhoff
Reply to  Animal Symbolicum
17 days ago

(1) The issue in front of the Supreme Court wasn’t the distinction between absolute and presumptive immunity, so that question gets kicked back to a lower court. Then the lower court can say something, and that can get appealed again. That’s just how it works. (The affirmative action cases are another example in that regard; see, e.g., Fisher v. Texas.) SCOTUS isn’t supposed to “reach” questions not in front of it.

(2) For sure that’s a great question, and a reasonable challenge. I think the dissent tracks your intuitions in that regard. I guess I’m a pretty narrow textualist, and I don’t see anywhere in the Constitution authorizing the President to assassinate political opponents. I don’t really see any other provision that would protect that, either; e.g., I don’t see how commander-in-chief powers apply. So for me, that’s already not a “core constitutional power” enjoying absolute immunity. Rather, it’s *either* an official act with presumptive (but overridable) immunity, or else an unofficial act. Either way, he’s legally liable, just to a different bar. Under Roberts’ reasoning, I think it’s probably more likely to be an official act–e.g., if the President uses the CIA/FBI to assassinate someone–and then, as you say, we’re off into balance of powers analysis.

Mark Raabe
Mark Raabe
Reply to  Fritz Allhoff
17 days ago

The majority used to claim to be narrow textualists as well.

Animal Symbolicum
Reply to  Fritz Allhoff
16 days ago

Gotcha. That’s helpful. Thanks!

Jonathan Kendrick
Reply to  Fritz Allhoff
16 days ago

You’re fundamentally missing the point. The fact that the court held that the president is exempt from prosecution for his official conduct is not what people are angry about. They’re angry because the majority takes an absurdly broad view of what constitutes “official conduct.” For example, the majority says, “Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.” Then, on this basis, concludes, “The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.” Given this standard, the President would be immune for plotting a coup so long as he only discussed the plans with his VP! That’s not good or reasonable!

Marc Champagne
17 days ago

I am an idiot, so help me out: How is this news for and about the philosophy profession?

akreider
akreider
Reply to  Marc Champagne
17 days ago

It’s certainly about philosophy of law, and this blog has on many occasions waded into applied philosophical matters.

benjamin s yost
benjamin s yost
Reply to  Marc Champagne
16 days ago

It’s “for” the profession in the sense that I’m a member of the profession and interested in reading other philosophers’ takes on the matter.

Last edited 16 days ago by benjamin s yost
Fritz Allhoff
Fritz Allhoff
Reply to  Marc Champagne
16 days ago

For those of us that teach and write about philosophy of law, this is a great opportunity to exchange analysis and views! @Justin did a really nice job setting it up, grabbing the right language and putting out some great questions.

Adam Rigoni
Adam Rigoni
Reply to  Marc Champagne
16 days ago

There’s still some of us that do legal philosophy, and it’s just as a relevant to us as, for example, stuff on misinformation is to epistemologists.

Kav
Kav
Reply to  Marc Champagne
15 days ago

A propos nothing but I find this rhetorical move to be among the least helpful things philosophers say. Why not make an earnest effort to understand its relevance…

Meme
Meme
Reply to  Kav
15 days ago

To be fair, he’s an idiot.

Mroslav Imbrišević
Reply to  Marc Champagne
15 days ago

It’s about Principles of Justice and how these could be violated by such immunity.

Ryan
Reply to  Marc Champagne
14 days ago

It’s about a dying democracy, something that ties right back to Socrates and hemlock.

Hermias
Hermias
16 days ago

I’ve always felt that Supreme Court opinions are just bad philosophy.

I guess that if you got 9 actual philosophers on the court you’d end up with 9 opinions and then meta-opinions about whether the opinions concurred.

Paul Wilson
16 days ago

Lets look at motive, intent, purpose, and constitutional originalism. I see a discrepancy in the majority opinion.

The majority opinion:

“In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose.”

vs. the dissenting opinion:

“The main takeaway of today’s decision is that all of a President’s official acts, defined without regard to motive or intent, are entitled to immunity that is “at least . . . presumptive,” and quite possibly “absolute.””

The majority opinion itself relies on motive, intent, and inferred purpose, as it cites not only the explicit words of the Constitution, but its presumed rationale, in the Federalist Papers:

“The Framers designed the Presidency to provide for a “vigorous” and “energetic” Executive. The Federalist No. 70, pp. 471–472… They vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.”… Appreciating the “unique risks” that arise when the President’s energies are diverted by proceedings that might render him “unduly cautious in the discharge of his official duties,” the Court has recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.””

Can we surely surmise the centuries-old motives, intent, and purpose of the framers of the Constitution, but not be allowed legal access to assess contemporary video, audio, and textual evidence, as well as the sworn testimony of eye and ear witnesses of a living President?

Last edited 16 days ago by paulscrawl
Andrew
Andrew
Reply to  Paul Wilson
14 days ago

Sorry – what’s the “discrepancy” supposed to be? The majority’s view is that the President’s intent or motive is off-limits for purposes of the official/unofficial distinction based on separation of powers concerns and the thought that the contrary conclusion would gut the immunity. Right or wrong, how is that inconsistent with thinking that what the Framers intended is important for purposes of constitutional interpretation?

Louis Zapst
Louis Zapst
16 days ago

So, in cases where the President orders someone to carry out an otherwise illegal act (e.g., asks the military to assassinate a rival on US soil), the persons who carry out that act could still be prosecuted, right? Or does immunity extend from the President all the way down the chain of command, so everyone involved can just say they were following orders? I’ve always thought it not only easier but way more important (in terms of deterrence) to do as Arizona is doing and prosecute those advisors and others (e.g., Giuliani, fake electors) who enabled the election fraud attempt rather than focusing on Trump himself. Trump obviously is beyond deterrence, but his future henchmen (and women) might think twice if they thought they might get into real trouble by aiding him.

Travis
Travis
Reply to  Louis Zapst
16 days ago

Pardon power…

Louis Zapst
Louis Zapst
Reply to  Travis
15 days ago

Sure, at the federal level and if the President were currently in office. However, if the assassination occurred on US soil in some state jurisdiction, whoever carried it out would (ordinarily) be subject to criminal prosecution in that state, and that falls outside the ambit of presidential pardon. Also, if the crime were only discovered after the President left office, the President who ordered it would not have be able to pardon at that point. Cf. the Arizona and Georgia cases against Trump and his henchmen. The question is whether his henchmen could be held accountable even if he has immunity.

Michel
16 days ago

Colour me stupid, but I still don’t understand what kinds of illegal things a President might have to do in an official capacity in the first place. For all the things I can think of, it seems like criminal prosecution is perfectly called for.

Are there, e.g., good historical cases? (There are obviously lots of bad ones, like the Iraq war, torture, extra-judicial assassinations, etc.)

V. Alan White
16 days ago

We are now effectively a SCOTUS-interpretive “constitutional” monarchy. And the electorate is happy to comply with putting Trump back into that role. We are getting what we collectively deserve.

Peter Ling
Peter Ling
Reply to  V. Alan White
16 days ago

For all this back and forth it seems to me that because a President is the highest official in the US all his actions other than having sex with Porn stars and Bunny girls may be classified official

antiabstract
antiabstract
15 days ago

I think that analyzing this issue in the abstract is not very helpful for the actual reality we live in. In reality, any specific question of what counts as official vs unofficial action will be determined ultimately by SCOTUS. And the Roberts court has consistently jumped through mental hoops to get the ruling that most favors their political side. Going forward, I think we can expect this court to determine what is official vs unofficial in any specific scenario based on what most supports their political side.

Michael Kremer
Michael Kremer
15 days ago

This discussion largely leaves out of consideration a highly significant part of the decision, section III C on pp. 30-32, which bars the use of evidence concerning official acts for which the President is immune from prosecution in prosecuting him or her for a different crime. Trump has already used this part of the decision to challenge his NY “hush money” conviction.

Erik Wielenberg
Erik Wielenberg
12 days ago

I’m curious to know what others think of the following:

Pages 15-30 of the majority opinion are most relevant to the crucial distinction between official and unofficial acts. Early in that section, the majority says that the domain of official acts extends to the “outer perimeter” of the President’s official responsibilities, covering Presidential actions so long as they are ‘not manifestly or palpably beyond [his] authority.’” (p. 17). As Justin notes, the majority also says that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives” (18). These two principles suggest a quite broad understanding of official acts: if it’s not obviously beyond the President’s authority, then it’s official – and courts are prohibited from examining the motives for anything a President does. It’s also striking that while the majority suggests that it’s in principle possible for a President to perform unofficial acts while President, they provide no examples of such acts. As far as I can see, the only example of unofficial acts the majority provides are acts performed by Clinton before he was president (p. 15).

Later, when discussing the indictment against Trump, the majority explains opposing views regarding the official/unofficial nature of some of Trump’s actions without taking a position on which view is correct (it says the District Court should figure that out). So, regarding the fake electors scheme, the majority says: “On Trump’s view, the alleged conduct qualifies as official because it was undertaken to ensure the integrity and proper administration of the federal election… As the Government sees it, however, these allegations encompass nothing more than Trump’s ‘private scheme with private actors’” (26-27). The two principles above suggest the argument Trump’s attorneys should make: ensuring the integrity of federal elections is not obviously beyond the President’s authority, and Trump did what he did in order to ensure the integrity of federal elections (a claim that cannot be questioned because it is a claim about the President’s motives).

Similarly, regarding Trump’s tweets and public statements on January 6, the majority says “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity — perhaps as a candidate for office or party leader” (29). Again, the winning argument for Trump is clear: all his tweets and public statements on January 6 were made in his role as President in order to “advance the public interest” (29) and are therefore official acts. It’s hard to see how the government could show otherwise without addressing the motives behind Trump’s acts – which the majority has said is not allowed.

A cynical person might think that what the majority has done is (a) ensure that Trump will not be brought to trial before the election and (b) show Trump’s attorneys how to provide arguments for the official nature of all of Trump’s acts relevant to the indictment that the majority will judge to be successful arguments.

Thomas Nadelhoffer
8 days ago

I wanted to say something about Justice Barrett’s concurring opinion. While she agrees with the majority that the President has either absolute or presumptive immunity for official acts (depending on the nature of the official act)–which is where most of the focus has been–she eschews the Court’s bizarre decision to prevent the President’s official acts (which includes conversations with any members of the executive branch–e.g., the Attorney General, the Vice President, and son on) from being introduced as evidence if and when the President is being indicted and prosecuted for any allegedly unofficial criminal acts.

This is a bridge too far even for Justice Barrett. I think the illustrative example she uses–a President being prosecuted for an alleged bribery–is a better example than the Seal Team 6 example to highlight how sweeping the new Presidential immunity powers are (since it shows that their scope now extends beyond the outer perimeter of the President’s official duties).

Here is what Justice Barrett says:

“I understand most of the Court’s opinion to be consistent with these views. I do not join Part III–C, however, which holds that the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege. See ante, at 30–32. I disagree with that holding; on this score, I agree with the dissent. See post, at 25–27 (SOTOMAYOR, J., dissenting).

The Constitution does not require blinding juries to the circumstances surrounding conduct for which Presidents can be held liable. Consider a bribery prosecution—a charge not at issue here but one that provides a useful example. The federal bribery statute for- bids any public official to seek or accept a thing of value “for or because of any official act.” 18 U. S. C. §201(c). The Constitution, of course, does not authorize a President to seek or accept bribes, so the Government may prosecute him if he does so. See Art. II, §4 (listing “Bribery” as an impeachable offense); see also Memorandum from L. Silberman, Deputy Atty. Gen., to R. Burress, Office of the President, Re: Conflict of Interest Problems Arising Out of the President’s Nomination of Nelson A. Rockefeller To Be Vice Pres- ident Under the Twenty-Fifth Amendment to the Constitution 5 (Aug. 28, 1974) (suggesting that the federal bribery statute applies to the President).

Yet excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution. To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability [emphasis added].”

So, for people like Justice Roberts and lots of others who dismiss the doomsday scenarios discussed during oral arguments and discussed by Justice Sotomayor in her dissent as fantastical, hysterical, confused, etc., just look at a more mundane case like the one Justice Barrett introduced. A President decides to openly sell a pardon. Given the absolute power to pardon, the President’s decision to pardon in this case would be beyond the reach of the law. That’s always been true.

But what about the President’s decision to accept a bribe in exchange for the pardon? That’s certainly not outside the reach of the criminal law, right? Well, technically, the President could be indicted in a case like this. But how could a prosecutor establish the bribery scheme if no evidence surrounding the pardon itself could be entered as evidence? That’s what Justice Barrett means when she says that the majority’s decision would hamstring the prosecution in a case like this since there would be admissible evidence of a quid (the unofficial acceptance of the bribe) shackled to now inadmissible evidence of the quo (the official pardon).