The SCOTUS Decision

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:

  1. Did they get the law right?
  2. 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.

35 comments… add one
  • Drew Link

    “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. “

    Of course.

    Which makes this odd:

    “ To my eye both the majority and…”

    Really? The law going in to the case was immunity for constitutional action and official duties. It did not allow for immunity for unofficial duties. That’s how it came out of the ruling. Nothing changed. What is at issue is the definition of unofficial, this whole large perimeter crap.

    The court, as it should, kicked that back. They told the cowards in the legislative to tighten up that issue. They told the lower courts to deal with the law, such as it is.

    The worst thing I’ve seen is the juvenile, cynical, destructive and unwarranted reaction of Democrats whining about a decision in high school level terms, with pure recklessness. You can call it policy. I call it rank partisan politics. If they want to change the court and its rulings maybe they shouldn’t put up a doddering old man.

  • PD Shaw Link

    I haven’t read the majority opinion yet, but I’m not surprised that the general answer on immunity was yes, maybe and no depending on the charges.

    For those charges that can go forward, the prosecutor is also prevented from presenting evidence of acts that enjoy immunity to support charges that are not immune. Justice Barrett dissented from that point.

    Justice Thomas addressed a point that I don’t think was briefed in this case, which is that the special counsel appointment was not authorized by statute and therefore without authority to bring this prosecution. I think this issue is being debated in the Florida case and will presumably come to the SCOTUS in some form or other.

    The dissent argues that there is no meaningful difference in the majority’s analysis btw/ absolute immunity and presumptive immunity given the strength of the presumption. Trump’s lawyers will cite this to the judge below. This is either correct so there’s no harm in pointing out the emperor wears no clothing, or incredibly short-sighted of Sotomayor.

  • steve Link

    The facts are pretty clear that Trump did try to have the false electors put in place. However, that is an official act by a president? In that case, what possible act could a president take that involves an election that could not be considered an official act? Note that while Roberts said they cannot include motive he also said they can include anything actually said or put into documents by a president of their aids. That is pretty close to de facto total immunity.

    “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. Testimony or private records of the President or his advisers probing such conduct may not be admitted as evidence at trial.”

    Roberts says the remaining allegations will need close examination but then sets the ground rules so that you cannot include most of the evidence.

    This is an originalist court that ignores that immunity is not granted in the Constitution and has just made up this law that meets their specific needs at this time, ie Trump goes free. They have set the bounds of official conduct as comically broad and then handcuffed investigations into any potential investigations. Suppose these standards were used for governors? Illinois would not have had its former governors going to jail, or at least not Blago.

    “It did not allow for immunity for unofficial duties.”

    I have never seen anyone make a good argument why trying to convince a governor to install false electors would be an official duty.


  • Drew Link

    “I have never seen anyone make a good argument why trying to convince a governor to install false electors would be an official duty.”

    What a kindergarten portrayal of the issue.

  • steve Link

    What a way to avoid admitting the bias of the court.


  • PD Shaw Link

    Basically, I read the opinion as extending the civil liability immunity to criminal liability. So, Nixon v. Fitzgerald is the case giving immunity to the President for using his legal authority unlawfully or for an improper purpose, resulting in the elimination of a job after he testified to Congress. On the other side, is Clinton v. Jones, where the President had no immunity for a sexual harassment lawsuit prior to his Presidency. Official acts, even with theories of improper exercise, purpose, or ends, don’t create civil liability. The Clinton case is so clearly not an official act of the Presidency it’s not particularly useful.

    Dave, I’m not sure what you mean by policy, but courts are not supposed to introduce their own policy preferences when reviewing legislation or regulatory actions because the legislature or agency is making policy. But interpreting a common law Constitution typically involves policy-making by the courts; it’s not written like rules or laws are.

  • steve Link

    PD- How could trying to replace real electors with false electors be regarded as an official act. The court just ruled that it was. How can you exclude motive? If the president ordered some assassinated because they had killed lots of Americans and were trying to do it again, that seems a lot different than having someone killed for revenge over some perceived personal insult or any other personal gain.


  • CuriousOnlooker Link

    I think another way of looking at it is the court ruled Presidential immunity exists in a tripartite scheme analogous to Presidential powers in Justice Robert Jackson’s concurrence in the Youngstown steel case.

    Where the Presidential power is at its zenith (conferred exclusively to the President in the constitution), those acts are absolutely immune. Where Presidential power is shared with Congress (delegated by statue or shared from the constitution like making war); he has presumptive immunity but it depends on the circumstances. Outside of that, there is no immunity.

    Conceptually it seems consistent with existing precedent; it would rule out a hypothetical persecution for violating the (repealed) office in tenure act. But it would be consistent with what the courts ruled dealing with issues in the Nixon and Clinton Presidencies.
    Note the courts ruling immunizes Biden from any prosecution for maladministration on the border or Afghanistan. It also stated quite clearly it that Trump is liable for unofficial acts (and both sides agreed that some of the charges involve unofficial acts).

    The main gnashing of teeth is it likely delays Trump’s DC trial until after November. But that is really is the fault of Jack Smith, DC trial court, and DC court of appeals. They didn’t bother separating out the official from unofficial acts beforehand.

  • PD Shaw Link

    @steve, one of the examples mentioned in the opinion is President Grant securing Republican electors in the 1876 election. Grant communicated with state officials about the administration of the federal election, sent troops to several states and ultimately 20 competing electors purported to represent several states. How you would describe Grant’s motive is entirely a matter of whether you were a Democrat or a Republican.

    The competing elector theory in 2020 was based upon Justice Steven’s dissenting opinion in the 2000 Bush v. Gore case in which he noted that having competing electors in Hawaii in 1960 allowed for more time to count the vote completely and carefully, and thus there was no need for the SCOTUS to stop the count. Trump’s lawyer had been on Gore’s legal team and advocated pursuing multiple electors for the express purpose of giving their court challenges more time. Here is Harvard Professor Larry Lessig arguing the strategy for Democrats to make sure Biden benefits from a full count of the votes:

  • Andy Link

    I haven’t had time to look at these deeply. Obviously the President needs some immunity, the question is where to draw the line.

    I’m not sure the SCOTUS got this right. For all of the doom in the dissent, the fact is that the President is the CIC of the armed forces – that is a core power, so the court saying core powers are untouchable for criminal prosecution would seem to make any order to the armed forces – legal or not – immune. If that’s an accurate read, I find it highly problematic. At best, it completely puts the onus and legal jeopardy for carrying out illegal orders on individual military personnel and commanders and none on the President.

  • Drew Link

    Your refusal to deal with the issue, Steve, as always, is duly noted.

  • I materially agree with your comment, Andy.

  • Zachriel Link

    Judge Chutkan: “Presidents are not kings, and Plaintiff is not President.”

    SCOTUS: “Overruled!”

  • steve Link

    Thanks PD. By my fuzzy understanding in the Hawaii situation it was not something done in secret at the request of either of the candidates or the sitting president. By January the votes had been counted multiple times. Doesnt truly seem quite analogous. Dont remember enough about Grant to comment though I dont believe he was running to stay in office so his actions were not aimed at directly helping himself.

    Agree with Andy. It seems clear that there ought to be immunity for most official acts and not for private actions and that there is a continuum that can make them hard to separate. However, this court has really had to go beyond any kind of reasonable assessment of official to suggest that putting in false electors secretly could meet the standard. They have tied the hands of the lower court in making that assessment by not being able to use communications with aids or documents they produced. Then they ignore the pretty obvious issue Andy notes.

    Seems pretty clear their primary objective was to protect Trump. They delayed hearing the case as long as possible and they released their judgment as long as possible. While it’s true the prosecutors should take most of the blame for the delay SCOTUS couldn’t be any more obvious in their working to aid their candidate.


  • CuriousOnlooker Link

    About the commander in chief portion and immunity, pay attention to what the court actually said.

    In the ruling, in Part 2 A, which talks about the “conclusive and preclusive” powers of the President for which this ruling says the President enjoys absolute immunity — it took the term from the Youngstown Steel concurrence and there Justice Jackson defined it. Justice Jackson stated regarding the army it is not the broad “CinC” role as popularly understood, because Article 1 gave Congress the power to declare war, raise funds for the army, and to regulate the army which Jackson stated will even impinge to some degree on “command” functions. Its relevant here because in that case Truman claimed his CinC role gave him the power to seize steel plants.

    Reading the opinion, it seems the absolute immunity is just over a few things, signing legislation or vetoing it, giving pardons, making nominations and firing “principal officers”, seeking advice from his “officers”, and addressing Congress.

  • PD Shaw Link

    @Andy, Justice Barrett states that the President cannot be charged with murder because federal law describes murder as an “unlawful” killing, intimating that “unlawful” is a term that would be judicially interpreted to exclude the President’s exercise of police and military power. She cites to a DOJ opinion during the Obama administration to that effect, the United States’ brief in the case and to Sotomayor’s approving of the DOJ opinion. That seems like a broad consensus that the President is not going to be responsible personally on military and police matters that existed prior to this decision. Whether it was beneficial to say the quite parts out loud might be another thing.

  • steve Link

    “Reading the opinion, it seems the absolute immunity is just over a few things, signing legislation or vetoing it, giving pardons, making nominations and firing “principal officers”, seeking advice from his “officers”, and addressing Congress.”

    Those are words. By action they declared that seeking to place false electors might be an official act and they tied the hands of the lower court when trying to decide if it was official.

    In particular, if they did not make allowances for the advice from officers thing, too lazy to go back and check again, how is that going to work? If POTUS seeks advice from his officers on how to break the law how would that be an official act that should be immune?


  • PD Shaw Link

    “quiet parts”

    The Supreme Court in Mireles v. Waco (1991), ruled that a judge was immune from suit for ordering the battery of a lawyer. The lawyer had not appeared for a hearing, so the Judge ordered two police officers to seize him and bring him to his courtroom, and rough him up in the process. The officers grabbed the lawyer from another courtroom, dragged him to the Judge’s courtroom, calling him vulgar names, and slammed him through the door, bruising him.

    The Supreme Court ruled that the Judge was immune from a suit for excessive use of force because “a judge’s direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge.” It was improper to consider whether the Judge performed a judicial function in bad faith or with malice, as that could only be determined through an adjudication that would defeat the nature of immunity from suit. Stevens dissented alone, arguing that ordering a battery is not a judicial function.

    This was not referenced in the recent SCOTUS decision, but I mention it for a flavor of how the courts see the importance of broad judicial immunity. I assume that the police officers don’t share that immunity, but I don’t know if a lawsuit was brought against them.

  • CuriousOnlooker Link

    “By action they declared that seeking to place false electors might be an official act”.

    The ruling doesn’t do that by action at all. It said

    “The first step is to distinguish his official from unofficial actions.
    In this case, however, no court has thus far considered how
    to draw that distinction, in general or with respect to the
    conduct alleged in particular … Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first

    For the hypothetical “If POTUS seeks advice from his officers on how to break the law how would that be an official act”; I’ll give you some practical examples of the difficulties.

    Barack Obama asked his AG for a memo regarding the legality of a drone strike on an US national. Holder said it would not break the law regarding the murder of US nationals overseas but another AG could easily rule differently AND cite Obama conferring with Holder as evidence of attempting to conspire against the law.

    Its not black and white and because the district court didn’t develop any factual records of what’s official and wha’;s unofficial; (the ruling seems to hint much of the indictments is unofficial); they need to do that first.

    In all likelihood, Trump will stand trial, it just won’t be before November.

  • PD Shaw Link

    Jack Goldsmith has posted some interesting thoughts from a big-picture perspective:

  • steve Link

    PD- Have to agree that this ruling greatly expands the concept of presidential immunity. While it probably falls short of making someone a king it comes close. It limits the ability to investigate and you cant question motive. Plus, Goldsmith totally ignores that it is the SCOTUS which will end up deciding what is official business and what is not. That just means that the courts, which are in no way impartial, will rule in favor of their own team, with the current court having a bias towards the imperial presidency.

    PD- That case sounds like a judge protecting judges. Seems an awful lot like SCOTUS protecting itself by claiming that it’s ok to accept thousands of dollars in gratuities. In some ideal world Congress passes a law that says it’s not OK for a judge to order beating up people. However, Congress is useless and really, it’s just bizarre that we would need such a law.

    CO- Nope. They sent it back to the lower court to decide if was an official act while making it difficult to determine the facts of the case. I really dont see how it could be considered as such as it was clearly an attempt to keep himself in office. There had already been many recounts. It does help to delay the case and it will give the court another chance to find reasons why Trump should be immune.


  • CuriousOnlooker Link

    “I really dont see how it could be considered as such as it was clearly an attempt to keep himself in office”

    The anodyne reply is practically every action a President takes is with the motive to stay in office or be reelected.

    I don’t see why the district court will find it difficult to separate out the official / unofficial acts. It may take time, but not difficult; because Trump’s counsel at oral arguments conceded that much of the allegations in the indictment was unofficial conduct.

  • Zachriel Link

    Trump v. United States has many dire ramifications. For instance, if the President conspires with the Attorney General to initiate federal investigations against critics based on knowingly false allegations then makes those investigations public to politically damage those critics, the President would not just be given deference, or even presumptive immunity, but absolute immunity. Keep in mind that Trump ran on “Lock her up!” and has threatened his opponents with prison and military tribunals.

  • Zachriel Link

    America rhymes with Rome. The Romans wouldn’t have a king, but Caesar became a temporary dictator (“for a day”, well, six months in Caesar’s case). His chosen successor (great nephew and adopted son) became Imperator, that is, Emperor. But Rome would have no king.

  • Andy Link

    “Justice Barrett states that the President cannot be charged with murder because federal law describes murder as an “unlawful” killing, intimating that “unlawful” is a term that would be judicially interpreted to exclude the President’s exercise of police and military power.”

    That is a pretty big problem in my view and would be as I said – the President can order an illegal or unlawful military action and is immune while those who receive the orders are in a catch-22 – if they refuse the unlawful order, they can be prosecuted for failure to obey, and if they carry out the order, they will not enjoy and of the President’s immunity.

    I was always bothered by Obama ordering the assassination of an American citizen in Yemen, even though it was someone who deserved it – now it seems that that the President is immune in all cases from doing that in other, less justified contexts. As dual authority over the military with Congress, as CO notes, lessens immunity only in theory – the Court was not at all clear on this, which means you’d have to have that adjudicated which would require brining charges. Who is going to do that? And the new rule about not being able to use evidence for many types of communications and activities means any such case probably has little chance of success.

    All very troubling in my view.

    Volokh also has good criticisms.

  • Zachriel Link

    Andy: the President can order an illegal or unlawful military action and is immune while those who receive the orders are in a catch-22

    Keep in mind that the danger is in the incremental infringement on liberty. They won’t start out with death squads, just “sham” investigations to cripple critics, then detentions for national security. As for those implicated with the President who might be criminally liable, the President’s motives and directives to members of the executive branch are under absolute immunity. Combined with the pardon power, also under absolute immunity, the guardrails are only paper thin.

    Andy: I was always bothered by Obama ordering the assassination of an American citizen in Yemen

    If you wage war on the United States, it doesn’t matter whether you are a U.S. citizen or not. If you are beyond the reach of the law, then you can be neutralized. Consider a U.S. citizen cozying up to Hitler and providing the Nazis material aid. That person would be a legitimate target. This has never been controversial.

    Volokh: The Supreme Court’s flawed decision largely ignores text and original meaning, and fails to resolve crucial issues.

    Which suggests that originalism has always been pretextual, and the majority makes their decisions based on what they think the law should be. If there is any truism about the Founders, it’s that they distrusted the concentration of power in the executive.

  • Andy Link

    “ If you wage war on the United States, it doesn’t matter whether you are a U.S. citizen or not. ”

    There is a difference between war and an assassination ordered against a specific individual as part of a counterterrorism campaign.

  • Zachriel Link

    Andy: There is a difference between war and an assassination ordered against a specific individual as part of a counterterrorism campaign.

    Anwar al-Awlaki was a regional commander of al-Qaeda. Al-Qaeda committed acts of war and terror against the United States, and Congress had authorized deadly force under the 2001 Authorization for the Use of Military Force (AUMF). Capture was very unlikely, the administration sought legal opinion, and force was considered legal and justified consistent with proportionality.

    Yes, it’s an awesome power subject to abuse, but not sure how else to structure the policy. Being a U.S. citizen doesn’t mean you can never be a military target.

  • steve Link

    I think the tipping point was when he was issuing fatwas for the deaths of specific Americans. That was not done quietly but very publicly. He had been recruiting terrorists and participated in planning the deaths of many Americans, largely civilians but I think that was the last straw. I think his US citizenship should have been revoked.


  • TastyBits Link

    Actually, Rome was a Kingdom before it was a Republic, and the dictator was a feature of the Republic. (The army had two Generals leading on alternate days, and that worked. Until it didn’t.)

    For a fun summer read, try Gibbon’s >”Decline and Fall of the Roman Empire”. It is quite a slog, but for me, it provided an entry point to so much history.

    PS: I want to thank you for using proper citations (in your own style). It is hard to follow who is replying to whom and what is being replied to.

  • PD Shaw Link

    @Andy, I’ve always assumed that people who carry out illegal military orders (however that is determined) are at personal risk, but mostly that was from military courts, not civilians. Since the SCOTUS ruled that judges were immune from directing a battery against lawyers in their courthouse, I don’t believe there has been a surge of lawyer beatings.

    But another way of looking at things is that the case against Trump is basically about his attempts to get the Acting Attorney General, the Vice President and state officials to do things they weren’t willing to do. If we’re going into a second Trump administration, it might be useful to understand on whom the weight of accountability lies.

  • PD Shaw Link

    That Volokh article is by Ilya Somin who is not an originalist, but a libertarian. Roberts is not an originalist, more of a traditional conservative in the Rehnquist mold, so the complaint that the decision is not originalist seems to miss the mark, particularly since Sotomayor wouldn’t have agreed to an originalist decision that reached the same outcome anyway.

    The basic framework appears to that Roberts insisted on writing the decision with the goal of getting the largest majority possible and he believed that starting from the Nixon v. Fitzgerald precedent and extending its logic would have the greatest legitimacy. There are probably concessions peppered throughout the opinion to keep justices from writing separate concurrences, but at some point he lost Barrett, possibly because she wanted there to be one charge to be confirmed against Trump to balance the charge stricken. More likely it’s the evidence issue, but whatever she wanted would have cost Roberts more votes to his right.

    He complained repeatedly about the time pressure the trial court, appellate court and the SCOTUS were under and probably feels that if he had a full session to work on this case the opinion would have produced greater clarity and consensus, but time had run out.

    I don’t envy the trial judge, he’s been given a healthy dose of issue-spotting to consider without a lot of clarity on what he should do. If we were asking what is the practice of medicine, the court would receive testimony from doctors. Will he ask Presidents what they do? Read Presidential biographies? Dueling historians?

  • Zachriel Link

    TastyBits: the dictator was a feature of the Republic.

    Sure. But the dictatorship of Caesar and Sulla was not the dictatorship of their ancestors. Traditionally, during the Republic, the dictator was given the power over only a single issue, had a term strictly limited to the problem at hand, and remained accountable to the Senate and to veto by the plebeians. And pertinent to the discussion, dictators were subject to prosecution.

    Caesar used his temporary dictatorship to concentrate all power unto himself and become dictator perpetuo.

  • Zachriel Link

    TastyBits: For a fun summer read, try Gibbon’s ”Decline and Fall of the Roman Empire”.

    This is a bit far afield, but perhaps related:

    Edward Gibbon: The reformation of the senate was one of the first steps in which Augustus laid aside the tyrant, and professed himself the father of his country. He was elected censor; and, in concert with his faithful Agrippa, he examined the list of the senators, expelled a few members, whose vices or whose obstinacy required a public example, persuaded near two hundred to prevent the shame of an expulsion by a voluntary retreat, raised the qualification of a senator to about ten thousand pounds, created a sufficient number of Patrician families, and accepted for himself the honourable title of Prince of the Senate, which had always been bestowed, by the censors, on the citizen the most eminent for his honours and services. But whilst he thus restored the dignity, he destroyed the independence of the senate. The principles of a free constitution are irrevocably lost, when the legislative power is nominated by the executive. {emphasis added}

    George Washington Resigns His Military Commission

  • TastyBits Link

    At this point, I have forgotten more than I remember, but on some days, I am like an idiot savant. (Can we still say that?) Anyway, I may muddle this.

    You are correct about Julius, but few people understand that he was a legal dictator elected by the Roman Republican Senators. It seems like there was some reason he was not happy, but I could be wrong.

    In any case, the Republic had grown too large to govern. Augustus tried to make it less intolerable for the upper class, but with successive Emperors, they were quickly becoming a richer lower class.

    NOTE: I am not doing the “young whippersnapper” thing, or “I know more than you do”. I have just been around way too long, and I prefer reading/learning.

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