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.