The Trump Case Immunity Decision

It’s Bad — but Not as Bad as You Think

Let’s get into this.

Here is a short breakdown:

At its most simple, the Court’s new test first asks whether the conduct in question was an “official” act — i.e., an exercise of the president’s powers. If it was not an official act, then there’s no immunity at all. If it was official, the next question is whether the president was exercising a “core” constitutional power. If so, then there’s complete immunity — no prosecution is permissible. But if we’re dealing with an official act outside the core, then “presumptive” immunity applies — the president will be presumed immune unless the prosecution can rebut that presumption. What does that mean? Well, no one knows exactly, because it’s new law.

It will now be up to the lower courts to apply those standards. The practical upshot: contrary to the prosecution’s hopes, there’s no way this case can be tried before the election. With more appeals likely, applying the Court’s new tests to the various allegations against Trump could take years.

Roberts (the syllabus) states: “Determining whether an action is covered by immunity thus begins with assessing the President’s authority to take that action.” That begs the question, does the president have the authority to tell the AG or his VP to violate the law, to interfere with an election, etc.?

Roberts distinguishes between Trump’s conversations with the Attorney General and those with VP Mike Pence. Roberts says that “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

However, it will still be the lower courts that determine what are “core” constitutional presidential actions and which actions might fall within “the “outer perimeter” of the President’s official responsibilities, which Roberts says are still presumptively immune so long as they are “not manifestly or palpably beyond [his] authority.”

I suspect that Roberts’ above statement about communications with DOJ officials will/can (must?) be viewed by lower courts as dicta, because it is those lower courts that have the job of making these determinations — not SCOTUS.

*(For those who don’t know what dicta is: Dicta in law refers to a comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation.)

Roberts himself says that the lower courts will decide how to apply the new standard while the SCOTUS ruling merely offers “guidance.” Thus, his statement that presidential communications with DOJ officials are immune is not determinative.

Here is the syllabus’ discussion of the Trump/Pence conversation that is used in the indictment, which Roberts says is only presumptively immune.

“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. / The question then becomes whether that presumption of immunity is rebutted under the circumstances. It is the Government’s burden to rebut the presumption of immunity.”

• (“Presumptively immune” simply means that if the (Special) Prosecutor wishes to charge a president for an action for which he may or may not be immune from prosecution, the prosecutor must rebut the presumption and show that the action is “manifestly or palpably beyond [his] authority.”)

In my opinion, here is the question raised by this decision: is an allegedly official presidential act that is patently unlawful actually an official act? Or to put it another way: were Trump’s conversations with his AG or his VP that were clearly intended to subvert the election official acts? I don’t think so. I think they would not be considered by any federal court as being part of his official duties.

Justice Amy Comey Barrett agrees with this view and suggests a two-step analysis: the first step looks at whether the the relevant criminal statute reaches the President’s official conduct; the second step decides whether applying the statute in the circumstances poses any “dange[r] of intrusion on the authority and functions of the Executive Branch.”

Barrett writes in her concurrence that “a President has no legal authority — and thus no official capacity — to influence how the States appoint their electors. I see no plausible argument for barring prosecution of that alleged conduct.” She adds that “[t]he President has no authority over state legislatures or their leadership, so it is hard to see how prosecuting him for crimes committed when dealing with the Arizona House Speaker would unconstitutionally intrude on executive power.” (Page 63 of the full decision.)

When it comes down to it, Jack Smith will still be able to successfully rebut the presumption of immunity for many or even most of Trump’s actions upon which the indictment rests — even the discussions with the AG, because it is beyond the president’s authority to tell the AG to engage in criminal activity that had nothing whatsoever to do with Trump’s official duties.

Roberts stipulates that the president’s motives cannot be taken into account when deciding what is immune. In this context, Trump’s motives (whether he intended to overthrow an election or not) are irrelevant. What matters is simply that those acts are not official by their very nature. Overthrowing an election is not an official duty.

This is one of those legal standards that is easy to articulate perhaps but is going to be difficult for courts to apply. But courts (especially federal district courts — that is, federal judges) are used to doing that. And what this all means is that it really is not SCOTUS who will decide whether Trump is or is not immune. It is the federal courts: the district courts and courts of appeal (federal circuit courts).

It is still possible that Trump could appeal to SCOTUS to overturn a federal circuit court of appeal’s decision but SCOTUS is unlikely to get involved in the minutiae of such decisions. Yes, the application of this new legal standard will take time and it is thus unlikely that any federal trial will resolve before the elections. However, we will definitely start to see some district court (and maybe circuit court) rulings applying the new standard before November, which should help clarify the nature of Trump’s actions. These decisions will, I think and hope, diminish the claims that Trump is targeted by the courts.

Like everyone else, I’m alarmed by a lot that is going on now (including SCOTUS) but I differ in the interpretation of the now-protected “core constitutional duty” of the president in that I think courts cannot readily interpret an unlawful action or order as a core const’l action — or even one within the outer penumbra of his official duties.