Trump v. United States 603 U.S. (2024) at 6:
“We conclude that under our constitutional structure of separated powers, the nature of Presidential power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute.” [my italics]
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Id. at 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 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.” [my italics]
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The “conclusive and preclusive constitutional authority” of the office of President is explicitly hedged by that of the Congress, both the Senate and the House, except in matters of executive appointment and foreign policy, where only the Senate’s advice and consent is required. The President’s “absolute immunity” as rendered by this decision thus allows him to commit war crimes—for example, assassinations of individuals deemed enemies of the state—with impunity. Justice Sotomayor said as much in her dissent. But commentators on the dissent, including Elie Honig at CNN, Professor Derek Muller at Notre Dame School of Law, and John Roberts himself (see pp. 37-42 of the decision) have dismissed this implication as merely hypothetical, even hyperbolic, “lacking evidence” in spite of a public record going back to the 1950s that documents such crimes. According to the Washington Post (July 1, 2024), Muller, for example, “called the hypothetical example of an assassination plot absurd. To start, others would likely be loath to carry it out because they would fear they could be prosecuted, he said.”
Why would they fear prosecution if another enumerated authority of the presidency is the power to pardon individuals convicted of crimes? The absurdity at large here is the easy dismissal of the prospect as hypothetical or hyperbolic when such crimes are already established historical facts. And in view of the affirmative answer given by Trump’s counsel under questioning during oral argument—would it be an “official act” if a president ordered a SEAL team to assassinate a political rival?—how could and and why would a jurist draw a distinction between an official act made in the name of domestic tranquility and one made in the name of national defense, if they are aimed at what the president defines as an enemy of the state?
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Id. at 14:
”Taking into account these competing considerations, we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility. 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. Indeed, if presumptive protection for the President is necessary to enable the ‘effective discharge’ of his powers when a prosecutor merely seeks evidence of his official papers and communications, id., at 711, it is certainly necessary when the prosecutor seeks to charge, try, and imprison the President himself for his official actions. At a minimum, the President must therefore 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.’ Fitzgerald, 457 U. S., at 754.”
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This is introduction to the more sweeping protections described at Section III C, pp. 30-32 , of the decision, on the “essence of immunity,” which follows immediately below. Presumptive immunity applies, according to the majority’s logic regarding the separation of powers, to the “outer perimeter” of an individual’s acts in his capacity as the president. The burden of proof lies with the prosecution, in other words—it must show, a priori, that when applied to the president’s conduct, an existing statute or prohibition that defines certain actions as criminal will not impede such conduct, even if it is possibly unofficial and/or obviously criminal.
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Id. at 30-32 [Section III C]:
“The essence of immunity ‘is its possessor’s entitlement not to have to answer for his conduct’ in court. Mitchell, 472 U. S., at 525. Presidents therefore cannot be indicted based on conduct for which they are immune from prosecution. As we have explained, the indictment here alleges at least some such conduct. See Part III–B–1, supra. On remand, the District Court must carefully analyze the indictment’s remaining allegations to determine whether they too involve conduct for which a President must be immune from prosecution. And the parties and the District Court must ensure that sufficient allegations support the indictment’s charges without such conduct.
“The Government does not dispute that if Trump is entitled to immunity for certain official acts, he ‘may not be held criminally liable’ based on those acts. Brief for United States 46. But it nevertheless contends that a jury could ‘consider’ evidence concerning the President’s official acts ‘for limited and specified purposes,’ and that such evidence would ‘be admissible to prove, for example, [Trump’s] knowledge or notice of the falsity of his election-fraud claims.’ Id., at 46, 48. That proposal threatens to eviscerate the immunity we have recognized. It would permit a prosecutor to do indirectly what he cannot do directly—invite the jury to examine acts for which a President is immune from prosecution to nonetheless prove his liability on any charge. But ‘[t]he Constitution deals with substance, not shadows.’ Cummings v. Missouri, 4 Wall. 277, 325 (1867). And the Government’s position is untenable in light of the separation of powers principles we have outlined.
“If official conduct for which the President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the ‘intended effect’ of immunity would be defeated. Fitzgerald, 457 U. S., at 756. The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President’s official decisionmaking will be distorted. See Clinton, 520 U. S., at 694, n. 19.
“The Government asserts that these weighty concerns can be managed by the District Court through the use of ‘evidentiary rulings’ and ‘jury instructions.’ Brief for United States 46. But such tools are unlikely to protect adequately the President’s constitutional prerogatives. Presidential acts frequently deal with ‘“matters likely to ‘arouse the most intense feelings.”’ Fitzgerald, 457 U. S., at 752 (quoting Pierson, 386 U. S., at 554). Allowing prosecutors to ask or suggest that the jury probe official acts for which the President is immune would thus raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office. The prosaic tools on which the Government would have courts rely are an inadequate safeguard against the peculiar constitutional concerns implicated in the prosecution of a former President. Cf. Nixon, 418 U. S., at 706. Although such tools may suffice to protect the constitutional rights of individual criminal defendants, the interests that underlie Presidential immunity seek to protect not the President himself, but the institution of the Presidency.” [my italics]
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Paragraph 3 of Section III C above, which I’ve italicized, is the “elbow graf” of this decision, where the majority makes an unexpected but initially unobtrusive turn that seals the deal. It has established to its satisfaction that both the intended and the essential effect of immunity is to protect the president from having to answer for his conduct in a court of law. Now it says that the evidence adduced for use in trials involving “generally applicable criminal laws” is not admissable in assessing or prosecuting a president, even if the acts under consideration by the prosecution are unofficial, because examination of such evidence by a jury would adversely affect the conduct of the president’s official acts (his “official decisionmaking will be distorted”).
In the present instance, therefore, evidence of Trump’s criminal intent and conduct in campaigning for re-election, quite apart from his official acts as president, is simply inadmissable in any court of law, including, presumably, the District Court to which the case is now remanded. His incitement to insurrection on and before January 6, 2021, for example, is now off limits in assessing and prosecuting his conduct while he was president. Perhaps even his “unofficial acts” after his term in office are similarly protected from criminal liability because those classified documents he took to Mar-a-Lago were related to his official duties as president. The point is that the “outer perimeter” of his “conclusive and preclusive constitutional authority” has no limit according to this decision.
Anything goes. Welcome to the Hobbesian world of your worst nightmares. It’s now the law of the land.