Jim Hartman
On July 1, Chief Justice John Roberts authored a landmark decision on executive power in Trump v. U.S.
A 6-3 court majority found presidents have “presumptive immunity” for their official acts.
The decision correctly focused on the institution of the presidency, and the ability of all presidents – not just Donald Trump – to act in the national interest free from prosecution for official acts.
The court merely extended precedent based on its 1982 opinion in Nixon vs. Fitzgerald, which held a president has absolute immunity from lawsuits for civil damages from the “outer perimeter” of any official duties taken while in office.
It ruled the threat of criminal prosecution would be even more crippling to executive power.
“A president inclined to take one course of action based on the public interest may take another, apprehensive that criminal penalties may befall him upon his departure from office,” Roberts wrote. “And if a former president’s official acts are routinely subject to scrutiny in criminal prosecutions, the independence of the executive branch may be significantly undermined.”
The Supreme Court heard this case after a D.C. Circuit three-judge panel made a sweeping and dismissive ruling that Trump wasn’t immune from prosecution in special counsel Jack Smith’s federal case against the former president’s efforts to undo the 2020 election.
Once a precedent is set for prosecuting a former president, as in this case, why wouldn’t future Justice Departments do the same thing – beginning with potentially a former President Joe Biden in 2025?
In their June 27 debate, Trump said Biden deserved to be charged as a criminal, and he didn’t rule out charging him.
Trump made a legal claim of “absolute immunity” for anything a president does. That’s clearly wrong.
However, the D.C. Circuit went overboard in the other direction declaring the president has no immunity.
The chief justice found a nuanced middle ground that is far from a total victory for Trump.
Roberts placed presidential activity into three “buckets”: private acts, core presidential functions, and all other official acts for which the president has “presumptive” immunity.
The court correctly reads the Constitution to offer absolute immunity for actions within the core powers of the president. This means a president can’t be prosecuted for actions related to national security, intelligence or foreign policy.
He can’t be prosecuted, for example, for deaths that occur from ordering a drone strike.
But the court rejected Trump’s claim that all presidential acts have absolute immunity. The chief justice wrote that a president has only “presumptive immunity” from prosecution for official acts outside of his core constitutional powers and stressed that unofficial private acts have no immunity.
For example, Trump couldn’t shoot someone on Fifth Avenue and be immune.
The most important question is what defines an official action that warrants presumptive immunity. The chief justice gives guidance to lower courts and Congress that will shield most official presidential acts.
One principle is that a prosecutor cannot investigate a president’s motive in making a decision. Another principle is the burden is on the prosecutor that an official act doesn’t deserve immunity.
The court remanded the case back to the trial judge to decide if the acts charged in Trump’s indictment are official acts deserving immunity or unofficial acts.
The hyperbolic dissent from Justice Sonia Sotomayor for the court’s three liberals claims, “the president is now a king above the law,” with all legal restraints removed from a future Trump presidency.
Upon reflection, Democrats should realize the court’s decision will prevent a future Trump Justice Department from seeking retribution against Biden by prosecuting him.
Democrats unfairly raged against the “MAGA Supreme Court.” But the court is protecting the separation of powers by keeping each branch in its constitutional lane.
This balanced immunity ruling underscores that elections are the best check on abusive presidents.
E-mail Jim Hartman at lawdocman1@aol.com.