Relevance
Decision Summary
Major Points of Decision
Chief Justice John Roberts, writing the majority opinion, argues that the president has three different types of actions he can take, and then creates a novel ruling about the types of criminal immunity that would apply to the president, based on the kind of action.
- “Core powers” actions are “conclusive and preclusive” actions that only the executive (president) can perform.
- Any action taken here is granted absolute immunity. These actions are not only beyond judicial review, none of these acts are able to be cited or referenced in any other criminal matter as evidence or otherwise.
Chief Justice John Roberts, pages 8-9
Congress cannot act on, and courts cannot examine, the President’s actions on subjects within his “conclusive and preclusive” constitutional authority. It follows that an Act of Congress—either a specific one targeted at the President or a generally applicable one—may not criminalize the President’s actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal pros- ecution that examines such Presidential actions. We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.
- “Official acts” are actions that the president takes up to the “outer perimeter” of his role as long as it “relates to the effective discharge of a President’s powers.”
- Any action taken here are granted presumptive immunity, in order to protect the president’s ability “to execute the duties of his office fearlessly and fairly.” This means that the burden is on “the Government [to argue] that applying a criminal prohibition to that act would pose no “dangers of intrusion on the authority and functions of the Executive Branch.””
Chief Justice John Roberts, page 20
Similarly, when a subpoena issued to President Nixon to produce certain tape recordings and documents relating to his conversations with aides and advisers, this Court re- jected his claim of “absolute privilege,” given the “constitutional duty of the Judicial Branch to do justice in criminal prosecutions.” But we simultaneously recognized “the public interest in candid, objective, and even blunt or harsh opinions in Presidential decision-making,” as well as the need to protect “communications between high Government officials and those who advise and assist them in the performance of their manifold duties.” Because the President’s “need for complete candor and objectivity from advisers calls for great deference from the courts,” we held that a “presumptive privilege” protects Presidential communications. That privilege, we explained, “relates to the effective discharge of a President’s powers.” We thus deemed it “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”
- “Unofficial acts” are actions that the president takes as a private citizen.
- “As for a President’s unofficial acts, there is no immunity.” Roberts notes that “in dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect.”
Roberts explicitly references four different sections of conduct in the allegations, and treats them as such:
- Conversations between Trump and his Acting Attorney General with regards to sending letters to states about “sham” investigations.
- Conversations between Trump and his Attorney General are “readily categorized” as being “conclusive and preclusive” to the executive, and therefor any of those conversations would be “absolutely immune from prosecution.”
Chief Justice John Roberts, page 28
Investigative and prosecutorial decision-making is “the special province of the Executive Branch,” and the Constitution vests the entirety of the executive power in the President. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.”
- Conversations between Trump and Pence with regards to counting the electoral votes.
- The Court granted presumptive immunity to these actions and remanded this part of the indictment to the lower courts to determine “whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.”
- Communications with state officials with regards to their electors.
- This section of the indictment was remanded to the District Court to do a fact analysis to determine if these actions were official or unofficial.
- Trump’s speech made and actions taken on January 6th during the insurrection.
- This section of the indictment was remanded to the District Court to do a fact analysis to determine if these actions were official or unofficial.
Justice Amy Coney Barrett writes a concurrent opinion in which she agrees with the core of Roberts’ argument, but she says that the majority takes an overly broad view of official conduct and has no good rationale in preventing even absolutely immune actions from being used to investigate other criminal acts.
Major Points of the Dissent
Sonia Sotomayor, with whom Elena Kagan and Kentaji Jackson join, dissenting, writes that the immunity is legally and historically inconsistent. She believes that the Court has gone even further than what Trump’s lawyers were even asking for, as Trump’s lawyers seemed to concede that a lot of the conduct was unofficial and that the President might be criminally charged for actions, even if they were official and core powers, so long as he were impeached and convicted first, two things that Roberts rejected in his majority opinion.
Sotomayor also points out that there are many federal safeguards in place for criminal prosecution, and that Roberts has failed to engage whatsoever with the idea that the public might have a public interest in having a president who does not feel as though he has any criminal liability while performing his duties. If the bias were so strong that the president could never have a fair trial over official conduct, it seems reasonable to believe that this would apply to literally any potential trial involving him, defeating the need for any sort of absolute immunity over only certain actions anyway.
She also remarks that it was not right for Roberts to make a determination of absolute immunity for the conversations between Donald Trump and his Attorney General, while remanding every single other action back to the District Court.
Justice Ketanji Brown Jackson, dissenting, writes that, while Roberts expresses great concern about the “separation of powers,” he has “snatched” a huge amount of power for the Court, as the Court is now the sole determining factor in whether or not certain conduct is entitled to absolute immunity from any sort of judicial review.
Notes
- Chief Justice John Roberts, writing the majority opinion
- The president has three broad types of immunity claims
- “Core powers” that only the executive/president can perform.
- Actions taken here are granted absolute immunity.
- “Official powers” or “Overlapping powers” where the president OR some other branch could perform them.
- Actions taken here are given presumptive immunity, meaning the burden is on the Government to prove that immunity should not be granted in this particular case, by proving that prosecuting a particular presidential act must pose “no dangers of intrusion on the authority and functions of the Executive Branch.”
- “Unofficial” actions
- Actions taken here are granted no criminal immunity, Roberts says that these actions must be “manifestly or palpably beyond [their] authority.”
- “Core powers” that only the executive/president can perform.
- Any immunity granted for any actions also means those actions cannot be reviewed even if they were used in the furtherance of another crime.
- Rulings on 4 major allegations brought up in the Opinion
- Conversation between Trump and his Attorney General
- The SC said this would be granted absolute immunity
- Pressuring Pence to flip the electoral vote.
- Granted presumptive immunity
- Conversations with state officials to flip their electoral votes.
- Remanded to the lower courts to argue about what kind of actions these were.
- Speech made on January 6th to rally supporters to march on the capitol
- Remanded to the lower courts to argue about what kind of actions these were
- Conversation between Trump and his Attorney General
- The president has three broad types of immunity claims
- Clarence Thomas, concurring
- Argues there is no ability for the Special Counsel to exist
- Amy Coney Barrett, concurring in part
- Barrett disagrees that official acts can’t be probed or presented as evidence in a criminal trial, even if those particular acts would ordinarily be immune from criminal prosecution.
- Barrett also doesn’t seem to agree with an “expansive” view on the absolute immunity argument forwarded by Roberts, but instead seems to view “official conduct” with a much more narrow lens, citing the conversations Trump has with election officials as falling squarely into private conduct, whereas Roberts remanded those questions to the lower courts.
- Sonia Sotomayor, with whom Elena Kagan and Kentaji Jackson join, dissenting
- Sotomayor argues in five parts
- That the immunity is legally and historically inconsistent
- Some state constitution actually did provide for criminal immunity for sitting governors, this was not included in the US Constitution.
- Art I §3 C7 gives us the “nevertheless” for criminal prosecution, and things like bribery are official acts for which one can be impeached, so any citations of this part of the Constitution seem to imply that criminalizing official conduct was textually supported by the Constitution.
- Sotomayor makes reference to other historical arguments that support the criminal charging of public officials acting in their official capacity.
- That it is “deeply wrong”
- That the “core” immunity is misguided and not needed
- The difference between an official and unofficial act and the inability to probe motives or intents of anything that can be even slightly construed as an official act essentially nullifies almost all criminal law from applying to almost all presidential actions.
- The civil vs criminal balancing test is not appropriately applied, since the public has a greater interest in criminal prosecution than it does in private suits, the executive branch should need to provide a greater reason, not a lesser one, to evade such liability.
- The evidentiary holding is unprecedented
- And that the ruling will have disastrous consequences
- That the immunity is legally and historically inconsistent
- There are many more safeguards and protections built into criminal suits vs private action.
- The court, even though it rejected Trump’s arguments that impeachment must precede any criminal indictment, actually grants more immunity by claiming even actions by which a president is impeached for cannot be criminal charged.
- Sotomayor challenges the logic that juries might be biased against a president’s “official-acts” due to their bias against their administration, however, that same logic would likely extend to literally every single act of a president, including non-official acts for other private suits.
- Roberts remanded 3 actions back to the lower courts for analysis, but for some reason thought it appropriate to declare the conversations Trump had with the AG as qualifying for absolute immunity with zero lower court consideration or analysis first.
- She points out that Roberts goes further than what the defendants were even asking for, noting that even when they’ve conceded some acts as private, Roberts is saying they may not be.
- Sotomayor argues in five parts
- Justice Ketanji Brown Jackson, dissenting
- Jackson points out the ludicrousness of the majority calling this a “Separation of Powers” question.
- Says that majority claims that the president must commit crimes in order to do his job.
- She points out that the Judges and Prosecutors themselves must assume a role of quasi-jury, judging whether a particular action was official or criminal in nature before any trial has even begun.
- This ruling has allowed the court to snatch power from the Legislature and give it to the Court and the Executive, as they are now making determinations of who the law applies to.
- “Core powers” aren’t even very well defined in the Constitution.
Questions for me to Research
- What are core powers of the president?
- What is the difference between absolute vs qualified immunity.
- Youngstown Sheet & Tube v. Sawyer court case grants the president some actions that are not reviewable
- Nixon v. Fitzgerald - what kind of presidential immunities and privileges was the Court talking about in this case?
- United States v Nixon 418 U.S. 683, 703, 711; what is “presumptive privilege” relating to presidential communications?
- Nixon v Fitzgerald 457 US at 754, pp12-15 - Government needs to show that applying a criminal prohibition to an act would pose no danger of intrusion on the presidential powers.
- Nixon 418 U.S. at 693 about “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute
- Trump v Hawaii 585 US 667, 701, does the president speaking constitute a core power?
- United States v Burr about compelling a president to turn over evidence for a subpoena.
Questions for Debates
- Can you give a single example of an action a president might want to take that would be chilled by him being criminally liable, even for the core functions of his office?
- If we are so worried about presidents infinitely prosecuting prior presidents for criminal matters, why has it not happened yet?
- Why did Ford find it necessary to pardon Nixon, and why did Nixon accept the pardon, if the President was assumed immune from criminal prosecution for acts taken as president?
- Let’s say a president goes on TV and makes a statement that a particular judicial action would deter him from making tough decisions about running the United States. Would this statement in and of itself not shield him from all criminal prosecution with respect to the criminal action he references, as it could be cited by the Court itself as evidence that the proposed judicial action would intrude “on the authority and functions of the Executive Branch.”
- Would you be okay with the entire cases against Joe Biden or Hillary Clinton falling under the purview of “official acts” in accordance with this ruling, thereby making all of their actions absolutely immune from criminal prosecution or judicial review?