The Court on Monday imbued former presidents with so much immunity from prosecution — some absolute, some presumptive, but with very little guidance about how to sort official acts into those buckets — that it’ll make it nearly impossible for prosecutors to make criminal cases against them going forward. This is, of course, most immediately relevant in special prosecutor Jack Smith’s long-stalled Jan. 6 case against Donald Trump.
Luckily for Trump, per the Court’s ruling, he seems to have led the Jan. 6 insurrection in a way that secures him near-blanket immunity. Even some actions Trump took that look a lot like unofficial acts — tweets that egged on the crowds, his speech at the Stop the Steal rally on the Ellipse — might just merit some immunity after all, Chief Justice John Roberts mused in his majority opinion.
“Some Presidential conduct —for example, speaking to and on behalf of the American people, — certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision,” Roberts wrote, suggesting he saw himself to be casting a very wide net.
Under the Court’s new framework, acts related to “core constitutional powers” get absolute immunity. The rest of the official acts get “presumptive immunity.” And unofficial acts get none (assuming prosecutors manage to find some).
Roberts ticked through the charges of Smith’s indictment, giving preemptive “guidance” to the lower courts about how to sort through the acts.
In a total get-out-of-jail-free card, Roberts asserted that Trump’s attempts to bully and leverage his Justice Department into leaning on states to replace their slates of electors with Trump-friendly fake ones warrants absolute immunity.
“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,’” Roberts shrugged, seemingly unconcerned with the torpedo he’d just taken to the Justice Department’s independence.
Trump’s threats to fire the DOJ’s noncompliant officials and replace them with low-level stooges? That also gets absolute immunity.
The Court then came to a charge more difficult to explain away: Trump’s pressure campaign to get then-Vice President Mike Pence not to certify the real Electoral College votes. Pence was acting in his role as President of the Senate, not in an executive branch capacity, Roberts grudgingly noted. But!
“Applying a criminal prohibition to the President’s conversations discussing such matters with the Vice President — even though they concern his role as President of the Senate —may well hinder the President’s ability to perform his constitutional functions,” he wrote.
Presumptive immunity it is, then, with the burden on the government to prove that the pressure campaign was an unofficial act.
On the fake elector scheme writ large, even Trump conceded that it had involved “private acts” before quickly backtracking. The majority, slipping from summarizing Trump’s argument to commenting directly, seemed to suggest that the plot should actually get absolute immunity — the highest degree under its new standard, which attaches to “core constitutional powers.”
“Of course, the President’s duty to ‘take Care that the Laws be faithfully executed’ plainly encompasses enforcement of federal election laws passed by Congress,” Roberts wrote. “And the President’s broad power to speak on matters of public concern does not exclude his public communications regarding the fairness and integrity of federal elections simply because he is running for re-election.”
And on the aforementioned tweets and speeches whipping up the crowd that stormed the Capitol, the majority is nominally leaving it up to the lower courts — but offered up a hearty helping of its own inclinations (“most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities,” e.g. presumptive immunity).
In every example, the majority put a thumb on the scale for granting Trump some degree of immunity (it also tossed in some occasional hedging so as to not completely preclude the government’s arguments). Roberts gave no examples of Trump conduct the Court found to be unarguably unofficial. Smith will now surely do some reformulating, trying to find a path through the Scylla and Charybdis of absolute and presumptive immunity.
It’s rich, though, that a Court so dismissive of the Trump disqualification case — which took its thesis directly from the text of the Constitution — is so readily willing to cobble together a brand new theory of presidential immunity that just so happens to align beat-for-beat with Trump’s actions around Jan. 6.
