I wanted to commend Amy Howe’s post at SCOTUSBlog on Trump v. United States to your attention. Here’s a snippet:
In a ruling on the last day before the Supreme Court’s summer recess, and just over two months after the oral argument, a majority of the court rejected the D.C. Circuit’s reasoning. As an initial matter, Roberts explained in his 43-page ruling, presidents have absolute immunity for their official acts when those acts relate to the core powers granted to them by the Constitution – for example, the power to issue pardons, veto legislation, recognize ambassadors, and make appointments.
That absolute immunity does not extend to the president’s other official acts, however. In those cases, Roberts reasoned, a president cannot be charged unless, at the very least, prosecutors can show that bringing such charges would not threaten the power and functioning of the executive branch. And there is no immunity for a president’s unofficial acts.
Determining which acts are official and which are unofficial “can be difficult,” Roberts conceded. He emphasized that the immunity that the court recognizes in its ruling on Monday takes a broad view of what constitutes a president’s “official responsibilities,” “covering actions so long as they are not manifestly or palpably beyond his authority.” In conducting the official/unofficial inquiry, Roberts added, courts cannot consider the president’s motives, nor can they designate an act as unofficial simply because it allegedly violates the law.
Turning to some of the specific allegations against Trump, the majority ruled that Trump cannot be prosecuted for his alleged efforts to “leverage the Justice Department’s power and authority to convince certain States to replace their legitimate electors with Trump’s fraudulent slates of electors.”
With regard to the allegation that Trump attempted to pressure his former vice president, Mike Pence, in his role as president of the senate, to reject the states’ electoral votes or send them back to state legislatures, the court deemed Trump “presumptively immune” from prosecution on the theory that the president and vice president are acting officially when they discuss their official responsibilities. On the other hand, Roberts observed, the vice president’s role as president of the senate is not an executive branch role. The court therefore left it for the district court to decide whether prosecuting Trump for this conduct would intrude on the power and operation of the executive branch.
The court did the same for the allegations in the indictment regarding Trump’s interactions with private individuals and state officials, attempting to convince them to change electoral votes in his favor, as well as Trump’s tweets leading up to the Jan. 6 attacks and his speech on the Ellipse that day. Making this determination, Roberts wrote, will require “a close analysis of the indictment’s extensive and interrelated allegations.”
I honestly don’t know what to think about the decision. I’ve scanned both the majority decision, the concurrences, and the dissents. To my eye both the majority and the dissent were emphasizing policy over the law which I emphatically do not believe is the job of the Supreme Court in this or any other matter.
I’ve been preparing a post on recent Supreme Court decisions, some of which have been quite significant in their implications, for some time. In thinking about these decisions I think there are two distinct issues:
- Did they get the law right?
- Are the majority or the dissent or both making policy rather than determining what the law is?
Most of the commentary I have seen talks almost exclusively about the policy but IMO policy is not the province of the courts—the law is. If you have a problem with the policy, your problem is with the Congress.







