The Supreme Court handed down its highly anticipated decision in the presidential immunity case, Trump v. United States, arising out of the Jan. 6 criminal prosecution brought by Special Counsel Jack Smith against former President Trump.

The 119-page decision affords the executive absolute immunity from criminal prosecution for “official acts” in two layers—Constitutional acts and acts derived from an act of Congress or other source. 1)Where the president’s authority for official acts comes directly from the Constitution he has absolute immunity that cannot be reviewed by a court or Congress due to the separation of powers. 2) Where the presidents authority for official acts comes from Congress the president has presumptive absolute immunity which can be rebutted if the prosecution can show that applying a criminal prohibition on that act wouldn’t encroach on the functions of the executive branch. It was already undisputed that unofficial acts done by the executive are not protected [MORE] and where a president acts beyond the scope of his authority then he is not immune from prosecution.

Please try to read the Court’s opinion yourself.

Contrary to complaints by the dependent media and dumbocrats, the ruling simply said that Trump has absolute immunity from any allegations concerning his interactions with the Attorney General and the Justice Department. All the remaining counts are still viable and were remanded to the trial court.

ABSOLUTE IMMUNITY

The Court explained that Article II of the Constitution provides that “[t]he executive Power shall be vested in a President of the United States of America.” §1, cl. 1. The President’s duties are of “unrivaled gravity and breadth.” The President’s authority to act necessarily “stem[s] either from an act of Congress or from the Constitution itself.” When the president has been granted the exclusive Constitutional power to act in a particular area it means that Congress cannot act on the subject and the courts have “no power to control [the President’s] discretion.” That is, where the Constitution has explicitly stated that the president has power to act, the other branches of government, which are separate but equal to the executive, may not interfere or review the act. It stated,

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 prosecution 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. 

PRESUMPTIVE ABSOLUTE IMMUNITY

However, where the president’s authority comes from an express or implied authorization from Congress or where he shares power with Congress, the president only has presumptive absolute immunity. The Court explained that “Such an immunity is required to safeguard the independence and effective functioning of the Executive Branch, and to enable the President to carry out his constitutional duties without undue caution.” The Court reasoned that Framers did not provide the president with such vast powers if he could not use them effectively or use them while having to be concerned about being charged with crimes in the future. The President “occupies a unique position in the constitutional scheme, as person who alone composes a branch of government.” Unlike other branches of government, the President has the power to act swiftly and decisively. The Court stated, “The Framers “sought to encourage energetic, vigorous, decisive, and speedy execution of the laws by placing in the hands of a single, constitutionally indispensable, individual the ultimate authority that, in respect to the other branches, the Constitution divides among many.” It further explained,

The Framers accordingly vested the President with “supervisory and policy responsibilities of utmost discretion and sensitivity.” He must make “the most sensitive and far-reaching decisions entrusted to any official under our constitutional system.” There accordingly “exists the greatest public interest” in providing the President with “‘the maximum ability to deal fearlessly and impartially with’ the duties of his office.” Appreciating the “unique risks to the effective functioning of government” that arise when the President’s energies are diverted by proceedings that might render him“unduly cautious in the discharge of his official duties,” we have recognized Presidential immunities and privileges “rooted in the constitutional tradition of the separation of powers and supported by our history.”  

According to the Court, while making decisions on behalf of the country the executive should not be bogged down with personal legal questions concerning his future potential criminal liability. Such a stance would inhibit action and possibly compromise decision making that should be solely focused on the interests of the country. Also, a president is not an ordinary criminal defendant - he is a separate branch of government by himself. According to the Court, any criminal charges, prosecution or court proceeding cannot prevent or interfere with the executive’s Constitutionally assigned functions - as courts (and Congress) should not be in the position to review decisions that are exclusively reserved for the president.

The Court explained, “At a minimum, the President must therefore be immune from prosecution for such 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.” That is, with regard to official acts that are not Constitutionally mandated, the president has presumptive absolute immunity unless the Government can show that prosecuting him would pose no “dangers of intrusion on the authority and functions of the Executive Branch. If the prosecution would not pose such a danger then the presumption of absolute immunity would be rebutted and the president could be charged with a crime.

APPLICATION TO TRUMP’S CASE

The Court could not apply its new test to most of the allegations in Trump’s case because the courts below failed to analyze any of the facts with regard to whether they involved official or unofficial acts. Contrary to media spin, the Court only ruled on one set of allegations that involved Trump’s conversations and ineractions with his Attorney General and Justice Department. The Supreme Court is an appellate court of the last resort that usually sits in review of factual and legal determinations made by lower courts. Additionally, as a federal court it usually only indulges the facts presented in the instant case - not hypothetical factual situations. Specifically, the courts below failed to first analyze any of the alleged facts with regard to whether they involved official or unofficial acts and second it failed to analyze whether absolute immunity applied to the factual situations presented. The Court explained that the bulk of the allegations must be reviewed by the trial court first - thus it remanded most of the case back to the trial court. The rest of the case, which is the bulk of the case, concerned Trump’s interactions with the vice president, state authorities and private parties and his public statements.

The only allegations the Court said it could review and decide on were those that clearly implicated the executive’s power derived directly from the Constitution. As such, all the allegations concerning Trump’s interactions and communications with the Attorney General and Justice Department were reviewed because said facts directly implicated Constitutional executive power over the Attorney General and the Department of Justice.

Concerning said charges, the Court stated, “The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. It stated, “The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Therefore, any allegations concerning Trump’s interactions and discussions with his Attorney General in his official capacity are off limits because the president has absolute immunity. Also, the Attorney General is exclusively controlled by the president and he can hire or fire him for any reason, at any time he desires and said decision is not reviewable by the court or Congress. Thus, the allegation that Trump threatened to fire the Attorney General if he didn’t investigate election fraud is also a non-starter because his Constitutional authority as a separate branch of government may not be regulated by Congress or reviewed by the courts. The court explained,

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 prosecution that examines such Presidential actions. The Court thus concludes that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.

The rest of the allegations were remanded to the trial court.

Due to the fact that the Presidents interactions and communications with the vice president are partially derived from the Constitution and partially derived from an act of Congress (with regard to the vice presidents role in the election certification proceeding), absolute immunity might apply to some of the allegations but presumptive absolute immunity would apply to most of the allegations involving the vice president. As such, the Court said the president’s immunity could be rebutted where the prosecution can show that prosecuting him would not pose a danger or intrude on the authority and functions of the Executive Branch.

Along with allegations involving the vice president, the bulk of the remaining allegations (involving Trump’s interactions with state officials and private parties and involving public statements made by Trump) were remanded to the trial court to determine 1) whether such acts were official or non-official and 2) if they were official, whether absolute immunity could be rebutted or sustained. Where absolute immunity for an allegation can be rebutted the government could then proceed with its prosecution.