Source. "I've historically been synonymous with corruption but in 2024 the Supreme Court exonerated me." - Richard Nixon, probably

Monday morning was interesting. I watched the CNBC headline change from (paraphrasing) "Trump immunity decision about to be released" to "SCOTUS rules partial immunity for Trump" to "SCOTUS rules immunity for official acts, limits evidence". The Trump v. United States decision on presidential power was well-timed going into the week of Independence Day, for punditry at least, the comparisons to British rule practically wrote themselves.

I'll dive into the full decision down below but start with the major questions tossed around in the media and comments sections. By far the two most common responses I've seen are these:

1. "Biden should just Seal Team 6 Trump/Alito/McConnell/etc." (Yes I verbed "Seal Team 6")
2. "Biden should just dissolve the Supreme Court." There are a few variations of this.

Surprisingly, the first one is probably okay by this decision. It's not straightforward so I have a section for this below. The second one is more or less wrong. Per this decision, Biden could (probably) not be criminally prosecuted for dissolving the Supreme Court, but nothing in the July 1 decision gives him the authority.

Monarchy?

On the monarchy thing, we're not there for two reasons. The first was described above - the distinction between immunity and absolute power. The second, SCOTUS declared an immunity exception for purely private acts. It's an almost completely meaningless exception (we'll get to that), but technically it is there.

We're not a monarchy, so can I still barbecue on the Fourth?

So while the president does not have infinite power, he is now only accountable to his ambitions for re-election (when applicable), his legacy, and his conscience. And so it is incumbent upon voters to choose someone who is not bereft of the three. Impeachment remains a check on presidential power but, as we'll see, the maximum penalty is removal from office.

Notably, without the concern for personal accountability, a president may now endeavor to expand his power toward monarchy without any risk whatsoever. This needn't be something dramatic like a drone strike or the events that brought us here. I listened to part of the NPR interview with the Project 2025 guy, one of his primary goals is to eliminate civil service reform. Combining the decisions of Nixon and Trump, it would appear that a president is no longer civilly or criminally liable for bringing back the spoils system.

More commonly, corruption from the Oval Office is now entirely legal. The presidency can now be plundered for its entire monetary worth, should an officeholder be inclined. Since both sides of the partisan divide accuse the other of profiteering from the office, it should be a unifying issue. An even more lasting impact will be the extent to which a president can solidify his party's dominance when he need not fear prosecution (and in this case the fear of impeachment has diminished from microscopic to infinitesimal).

So if you believe that politicians are virtuous, fire up the Weber, Traeger, or Foreman. If you maybe suspect the presidency should have some guard rails, perhaps this is an ID4 to sit out.

Majority Opinion

The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity from prosecution for all his official acts.

The decision classifies actions by a president the following:

1. Core (constitutional powers) acts - these receive total immunity
2. Non-core official acts - these receive 'presumptive' immunity
3. Private acts - these receive no immunity

Core acts

"Core constitutional powers" are not spelled out anywhere (Article II or otherwise) but the decision identifies a few:

Majority Opinion

He also has important foreign relations responsibilities making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. Domestically, he must "take Care that the Laws be faithfully executed," and he bears responsibility for the actions of the many departments and agencies within the Executive Branch.

In another context these might be considered reasonable. Here, they're a list of actions that are now, intrinsically, above the law. Returning to the corruption thing from above, all of these can be traded for cash, support, or revenge. And there might be more, since the classification is entirely novel.

Official acts

The majority decided that official, non-core acts have 'presumptive immunity' which is afaik another novel term:

Majority Opinion

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... 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."

This is probably where CNBC's speed read gave us 'partial immunity' but updated it to de facto immunity. The implications of presumptive immunity are as follows:

• Any prosecution of the president goes through the Supreme Court. That is, this offers a broad-reaching immunity that can be appealed up to the top court before any prosecution can go to trial. Barring a carbon copy of a previously-decided act, the interlocutory appeal provided by immunity means that the fastest possible delay is the December-July timeline we saw here.
• The bar for deciding that a president can be prosecuted for an official act is comically high. "No dangers of intrusion on the authority and functions of the Executive Branch" essentially means that when the question arrives at the Supreme Court, the decision is whatever they feel like.

Justice Jackson's dissent talks at length about the meaning of immunity and highlights the first bullet from above:

Justice Jackson

In essence, the Court has now imposed its own preclearance requirement on the application of Congress's laws to a former President alleged to have committed crimes while in office.

Private acts

The majority writes, "As for a President's unofficial acts, there is no immunity." The best summary is in Justice Sotomayor's dissent:

Justice Sotomayor

This unremarkable proposition is no real limit on today's decision. It does not hide the majority's embrace of the most far-reaching view of Presidential immunity on offer... It then goes a step further: "In dividing official from unofficial conduct, courts may not inquire into the President's motives." It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune. Under the majority's test, if it can be called a test, the category of Presidential action that can be deemed "unofficial" is destined to be vanishingly small.

But at least that vanishingly small distinction sets us apart from the monarchy we defeated? Like with presumptive immunity, the ability to prosecute even a private act goes through a capricious Supreme Court that decided it's Calvinball from here on out.

Originalism/textualism

As with Trump v. Anderson, the originalism mantra that has been used to gut so much stare decisis was absent except in name.

Majority Opinion

True, there is no "Presidential immunity clause" in the Constitution. But there is no " 'separation of powers clause' " either. Yet that doctrine is undoubtedly carved into the Constitution's text by its three articles separating powers and vesting the Executive power solely in the President.

Implied textualism. Perfect.

The Roberts court has overturned decision after decision, specifically because they took issue with the constitutionality tests of their predecessors. So when the inconvenient fact that presidential immunity isn't mentioned in the text of the Constitution, the explanation becomes, "well first, a 20th century court decision said presidents have civil immunity and, second, there's a lot of other stuff not specifically named in the Constitution that we recognize". It's exactly the script that critics have regularly called out:

• Textualism only exists when it is helpful.
• Originalism means whatever the court wants.

Then it gets really bad:

Majority Opinion

The principal dissent then cites the Impeachment Judgment Clause, arguing that it "clearly contemplates that a former President may be subject to criminal prosecution." But that Clause does not indicate whether a former President may, consistent with the separation of powers, be prosecuted for his official conduct in particular.

"Written in the wake of the war for independence, the most likely read of the Constitution is that impeachment exists because the founders were only concerned about a president's private conduct." These two sentences pretty succinctly capture the fact that Roberts majority isn't even attempting to make good faith arguments.

Majority Opinion

Given the Framers' desire for an energetic and vigorous President, the principal dissent's view that the Constitution they designed allows all his actions to be subject to prosecution-even the exercise of powers it grants exclusively to him-defies credulity.

Couple of obvious problems here:

• "Energetic and vigorous" does a lot of work. As the dissents mentioned, the Founders knew what immunity was, e.g. the Speech and Debate Clause. They would have used the term rather than imply it. And of course, we all know from grade school civics that the legislature and judiciary aren't empowered to move quickly, even less so in the horse and buggy era. So it would make sense that the Founders describe the only branch capable of rapid action as energetic and vigorous without, say, implying that it was 99% unprosecutable.
• Did Sotomayor/Kagan and Jackson demand that "all [the president's] actions to be subject to prosecution"? I didn't get that from my initial read, but, supposing they did that's quite the false dilemma.

"The end of the republic"

Since there's not much to write about in terms of precedent or constitutional text, Roberts instead wrings his hands about the real world impact of allowing presidents to be subject to prosecution for some subset of their official acts. This comes down to:

1. Presidents won't be able to take bold and decisive action. Like greenlighting the Bin Laden raid or whatever Thomas Jefferson had in mind.
2. We'll enter a cycle where presidents will simply always turn the DoJ on their predecessor (unless allied).

The majority opinion accurately identifies a somewhat-ambiguous federal statute that could be used against pretty much every president. It could also be used against people who aren't the president so perhaps the problem and solution are legislative. In any event, during their brief foray from the ivory tower of not being allowed to be concerned with the real world impacts, the court decides to trade an actual prosecution (January 6) for a handful of doomsday hypotheticals. All while mocking the dissent for naming nightmare scenarios enabled by this decision.

The sensational headline that I bemoaned in April is actually a great bellcow for the new state of play. "Can a president order the military or IC to kill his political opponent?"

It feels like a bullshit question, like the answer can only be "of course not". And yet...

• This was also the circuit court's understanding of the matter, particularly after Trump's lawyer said such an action would be immune unless impeachment occurred.
• In her dissent, Justice Sotomayor wrote, essentially, 'yes, according to the majority the Navy Seals scenario is immune'. This might have been a place for the majority to address a few hypotheticals. "Coups are not immune, assassinations are not immune, here is our rationale..." Instead, they respond, "[The dissent] would have us exhaustively define every application of Presidential immunity."

The explanation for why assassinations are almost certainly in-bounds:

• The majority opinion states that "core powers" of the president enjoy absolute immunity. While "core powers" is not established doctrine, there's no conceivable situation where commanding the armed forces isn't a core power of the president.
• The decision states, "In dividing official from unofficial conduct, courts may not inquire into the President's motives." Also, "Use of evidence about [immune acts], even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the President's official decisionmaking will be distorted." So barring an outright declaration of immunity for wielding the military against an opponent, any prosecution for the non-core and personal aspects of the crime would have to proceed without much evidence or discussion of motive.
• If Congress decides that political assassinations are worthy of impeachment, the most that they can do is remove the president. His VP wouldn't even need to pardon him because the official act enjoys immunity. I personally choose not to entertain the scenario where this court examines an impeachment for "high crimes and misdemeanors" relating to an act that is, by their definition, not a crime.

I would love to see this refuted but based on everything I've read, the president now self-polices his domestic assassination powers. The best I found:

/u/letdogsvote Time for Biden to leverage the fuck out of this.

/u/itsatumbleweed Some suggestions from Sotomayor: > Orders the Navy's Seal Team 6 to assassinate a political rival? Immune. > Organizes a military coup to hold onto power? Immune. Takes a bribe in > exchange for a pardon? Immune. Immune, immune, immune.

/u/Leap_Day_William Even if these constituted "official acts", they are not core constitutional powers, so it would still only be presumptive immunity, as opposed to absolute immunity. The Court states that the presumption can be rebutted by demonstrating that prosecution involving official acts would not pose any dangers of intrusion on the authority and functions of the Executive Branch. This would be an easy threshold for the government to meet with regard to prosecuting a president for ordering Seal Team 6 to assassinate a political rival, organizing a military coup to hold onto power, or taking a bribe in exchange for a pardon. Specifically, all three of these examples are such egregious abuses of power that their prosecution would not pose any danger of intruding on the authority and functions of the Executive Branch.

I'd like to believe /u/Leap_Day_William, but as I mentioned, coups and assassinations were too hypothetical for the court to address. And he misses that pardons are specifically named in the decision as a core power.

To be clear, I can't see Biden doing this. I can't see Trump doing this. But there is a certain je ne sais quoi about legalized political assassinations in a democracy, to say nothing for the less audacious acts that have the same outcome over four years.

Immunity in office

Mitch McConnell

President Trump is still liable for everything he did while in office. He didn't get away with anything yet. We have a criminal justice system in this country. We have civil litigation.

As I understand it, the legal theory that a president is immune from criminal prosecution while in office is based only on a memo from then-AG Barr. It's not legally binding and was a convenient way to convince people that the Mueller Report did not recommend prosecuting Trump when it actually said, "here's all the evidence, Congress". To the extent that the Barr memo might be tossed out the window in the case of a coup or assassination, Trump v. United States supersedes it. It not only defines what acts are immune but also the timeline for prosecutions - something that unquestionably matters in a crisis scenario. To be sure, the impeachment process is our first line of defense against a sitting president.

Update 20240709:

/u/asoap "Congress cannot act on, and courts cannot examine, the President's actions on subjects within his 'conclusive and preclusive' constitutional authority." This makes me wonder about impeachment and removal of a president. Does this supreme court decision prevent an impeachment if the President misuses his constitutional powers?

/u/jpmeyer12751 I have made that argument in other forums and have been roundly criticized as over-reacting. However, I think that impeachment for actions within POTUS' core duties is now an open question. CJ Roberts did not choose those powerful and unqualified words carelessly. I think that he intended to create doubt on the issue. We know from DJT's second impeachment that even legally baseless claims will sway at least some Senators to vote against impeachment. CJ Roberts has just made successful impeachment for some POTUS actions MUCH more difficult; and I think that he did it intentionally.

Following on the bullet from above about core constitutional powers not being impeachable "high crimes and misdimeanors", Roberts's language is rather concise (or sloppy). Separation of powers has been a recurring theme for this court, so it wouldn't be totally inconsistent.

How did this decision affect the ongoing prosecutions?

Trial	Before	Now
January 6 (DC/Federal)	In an attempt to overturn the result of the 2020 election, Trump sparked off the Boomerkrieg, nagged Mike Pence to not certify the vote, and arranged for a bunch of fraudulent electors. This trial was on hold while the immunity claim was being decided.	This one is dead. SCOTUS found one act was an exercise of 'core powers' (Pence), a bunch of presumptively immune actions, and zero private acts ("we would have but it wasn't briefed"). The prosecution will be limbo until the immunity issues are decided.
'Perfect phone call' RICO (Georgia/State)	Trump told the Georgia governor to find him votes and his accomplices took deals acknowledging the fake elector scheme. This one hasn't yet gone to trial for reasons including the number of defendants and some unwise personal choices by the district attorney.	Like the federal prosecution, this one will need to be re-evaluated based on the new immunity rules.
Classified documents (Florida/Federal)	Trump had many classified documents in his home after leaving office. Next to a photocopier. This one has been grinding through the pretrial phase.	In his separate concurrence for Trump v. US, Justice Thomas suggested that the special counsel position is unconstitutional. This is probably Trump's only remaining legal exposure (however slim) before the election. Presidential immunity shouldn't apply here, but the existence of any immunity might open the door to interlocutory derailment.
Hush money (New York/State)	Trump was found guilty of doing some illegal accounting to cover up a sex scandal.	Trump's attorneys have filed a new appeal. Most of the crime (x34) occurred before Trump took office but Hope Hicks testified at the trial. So under the new immunity rules, the case may need to be retried.

A lot has been written about this decision but I haven't read much due to this. The Serious Trouble episode was good.

Confirmation contradiction

When the Dobbs decision dropped, journalists quickly created mixtapes of the majority justices claiming at their (under oath) confirmation hearings that Roe was settled law. This decision wasn't any different.

Above The Law

Chief Justice John Roberts at his confirmation hearing: "No one is above the law under our system and that includes the president. The president is fully bound by the law."

The Daily Beast

In Samuel Alito's confirmation hearing he told the senate that "no president, Democratic or Republican, no president is above the law, as neither are you, nor I, nor anyone in this room."

Above The Law

Senator FEINSTEIN. But let me ask this question precisely. The Supreme Court has unanimously ruled that a President can be required to turn over information. It upheld the subpoena for the tapes of Oval Office conversations that revealed President Nixon's efforts to cover up the Watergate break-in. This, as you know, was U.S. v. Nixon. You have said that the Nixon case might have been wrongly decided. Was U.S. v. Nixon wrongly decided in your view? Judge KAVANAUGH. So that quote is not in context and is a misunderstanding of my position that is up there. He would not go on to clarify what he actually meant. Instead he called it a great moment for the Supreme Court - though he always carefully called it "great" because it was a show of judicial independence in a time of crisis, and never because of the holding itself. Nixon required the president to comply with a grand jury subpoena. Part III-C of the Trump opinion says the courts cannot consider presidential evidence at all, even to prove a case where a president did not have immunity. 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. (Quoting ruling)

I imagine their response would be that the carve out for private acts make these statements consistent, at least the ones not made in the context of official acts. That or, "lol there is nothing you can do about it".

Uno reverse

MSNBC said, "Aha, now that the DC court has to make initial decisions on immunity for official acts, the evidence will be paraded in front of voters". They seem surprisingly unaware of what timeline we're in.

Spicy (Update: 07092024)

I might ordinarly balk at linking Vox, particularly after links to MSNBC, Above The Law, and The Daily Beast. On the other hand, those articles just compiled direct quotes, in context. The intro to this editorial was pretty funny:

Vox

All of the United States' most important governing institutions are failing at once. Congress, of course, has long been barely able to function. Every year, it struggles merely to fund the rest of the government, and the risk that it will trigger a debt ceiling breach that would set the global economy on fire is alarmingly high. The Republican Party has atrophied into a cult of personality, centered on an authoritarian who literally tried to overthrow the duly elected United States government. The Democratic Party, meanwhile, may be unable to dislodge a senescent leader who is no longer capable of making the case against his imperious opponent. And then there's the Supreme Court, perhaps the only branch of the United States government that is capable of speaking in complete sentences right now. But the most recent Supreme Court term, which ended last week, makes one thing clear: Don't confuse the Court's relative eloquence for competence.

The rest of the editorial is hit or miss but it presents a more comprehensive view of the current Roberts court than some of the opinions about this particular decision.

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