Lots of Lingering Questions on the Trump Immunity Ruling

Formal group photograph of the Supreme Court as it was been comprised on June 30, 2022 after Justice Ketanji Brown Jackson joined the Court. The Justices are posed in front of red velvet drapes and arranged by seniority, with five seated and four standing…Seated from left are Justices Sonia Sotomayor, Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito and Elena Kagan. .Standing from left are Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson…Credit: Fred Schilling, Collection of the Supreme Court of the United States.

Call it irony. Three days before America celebrates shaking off the rule of the British king, the Supreme Court releases a decision that many say grants the president authoritarian powers and makes him all but unaccountable to the law.

I’ll be honest. I sort of expected this. It’s logically obvious that the president has to have immunity for some of his acts as head of the government. For instance, ordering the bombing of a foreign country would be illegal for a private citizen, but it’s part of the president’s job as commander-in-chief. On the other hand, I did not expect the Court to offer immunity as broad as it did.

Let’s take a look at what the majority decided. (You can read the decision here.)

Contrary to what you may have heard (from both sides), the Court did not grant Donald Trump absolute immunity. Instead, Chief Justice Roberts describes three different levels of immunity that can apply to the president depending on the action taken.

First, there is conclusive immunity, which is absolute immunity. However, conclusive immunity only applies to the “President’s exercise of his core constitutional powers.”

Roberts cites examples of these core powers, saying, “They include, for instance, commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.”

Second, Roberts writes, “As for his remaining official actions, he is entitled to at least presumptive immunity.”

In other words, the president may not be immune from prosecution for other acts, but he is presumed to be so. The implication is that the burden of proof is on the prosecution to pierce the shield of immunity.

As Roberts explains, “At a minimum, the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Third, “as for a President’s unofficial acts, there is no immunity,” Roberts writes.

Ultimately, the Court remands most of the charges against Trump back to the lower court where it directs JudgeTanya Chutkan to assess whether prosecuting would intrude on executive authority and whether they involve official acts that might be covered by immunity or unofficial acts for which there is no immunity.

Roberts provides guidelines, saying, “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.”

So a president’s actions must be both unlawful on their face and unofficial to not fall under either conclusive or preclusive immunity.

The exception is the president’s discussions with the Acting Attorney General about overturning the 2020 election results. The Court held that these discussions “are readily categorized in light of the nature of the President’s official relationship to the office held by that individual.”

The Court also held that it is a core constitutional power for the president to fire cabinet members at will. Thus, when Trump threatened to fire Acting Attorney General Jeffrey Rosen when he resisted Trump’s efforts, Trump was covered by conclusive immunity.

On the other hand, the Court left open the door to prosecution based on Trump’s discussions with Vice President Pence about using Pence’s role as president of the Senate to alter the outcome of the Electoral College vote. The Court did not rule on whether these discussions were official acts and remanded the question to the lower court.

Roberts concludes the majority opinion by saying, “The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.”

The president may not be above the law, but the Court did just make it measurably harder to prosecute illegal activity by Oval Office occupants. The impact of the ruling will be felt most immediately in the Trump prosecution, but the long-term effects may be more consequential.

There is a legitimate concern about tit-for-tat prosecutions by competing presidents and parties. Just look at the Republican push to find something – anything – to impeach and prosecute President Biden for in retaliation for the Trump impeachments and prosecution. But I am concerned that the Court drew the protective line of presidential immunity too large.

There are lots of lingering questions. For example, the president is the commander-in-chief of the military so is it a core constitutional power to “order the Navy’s Seal Team 6 to assassinate a political rival?” Justice Sotomayor argues in her dissent that the majority seems to be saying that immunity would apply here. Or would that be considered an unofficial act despite the president’s constitutional role?

Trump supporters celebrating the ruling should consider Roberts’ statement that “immunity applies equally to all occupants of the Oval Office.” Joe Biden is president right now. Could he legally order a drone strike on Mar-a-Lago and be covered by conclusive immunity as a sitting president exercising core constitutional powers?

David French offers a different scenario. The Insurrection Act gives the president broad powers to deploy American soldiers domestically. What if a president lawfully orders troops into the cities and then, protected by conclusive immunity, issues unlawful orders such as declaring martial law and arresting the political opposition en masse?

For that matter, what if a president orders the military to commit war crimes? Donald Trump threatened to issue just such an order in 2020.

My instinct here is that the president might have immunity, but the members of the military and other nonpresidential officials would not. The preservation of our constitutional system may one day depend on the military and government officials refusing to follow unlawful orders. That refusal has its own risks and costs.

But wait, there’s more.

If you thought that the Court was just giving Donald Trump a pass and rubberstamping the Republican agenda, you might need to think again. I described recently how the conservative Court has been picking off right-wing legal theories, and just a few days ago, the Court dealt a blow to the executive branch plans of a potential second Trump Administration.

In a sleeper case, the Court overruled the Chevron deference doctrine, which had held that government bureaucracies were generally allowed to define the laws passed by Congress. This often led to wild swings in policy and bureaucratic law between different administrations, and Republicans had hoped to use the reinterpretation of laws as a cudgel to transform the federal government under Project 2025. The recent Supreme Court ruling serves as a notice that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous.”

The Trump immunity ruling is not the disaster that some say, but it definitely has problems and gaping holes that may turn out to be larger than the Chevron loophole by several orders of magnitude. In the short term, Trump’s prosecution is still alive and his quickly-filed challenge to his New York felony conviction will likely fall flat since a) he wasn’t president when he cooked the books and b) it wasn’t an official act. It is also difficult to see how retention of classified documents by a former president could be an official act of a sitting president.

On the other hand, Trump will certainly kill the federal prosecution against him if he wins.

The decision does mean that the very slight chance that Trump’s trial would be complete before Election Day has diminished into nothingness.

I’d like to see Congress address the presidential loopholes left by the Supreme Court, but it would take a big man in the Oval Office to help pass a constitutional amendment that would limit his own power. That man won’t be Donald Trump. There is no use starting such a movement before the election because Republicans won’t want to limit Trump’s power if he wins.

If Trump loses or when he is out of office and the Republican Trump Fever finally breaks, then maybe Congress will be able to fix the Court’s mistake and act to limit the abuse of presidential power. Both parties should want this because neither trusts the presidents from the other side. Hopefully, we’ll still have a country long enough to close the loophole.

In the meantime, the best course for voters is to carefully consider the candidates and don’t vote for people with a history of corruption and abuse of power. That’s especially true if they tell you that they plan to abuse their office. If they tell you that they are going to be a crook or dictator, believe them.