For everything partisan-coded, 80% of people will lie through their teeth to serve their tribe's goals. So it'll be hard to find an impartial summary of today's presidential immunity SCOTUS opinion.
But I don't have a tribe. So here's my "just the facts" summary. π§΅
But I don't have a tribe. So here's my "just the facts" summary. π§΅
Executive immunity has always been a thing. The underlying rational is that presidents cannot be encumbered in carrying out their necessary official duties with fear that they will be sued into oblivion for doing so.
In terms of official acts, a president may act (1) with constitutional powers reserved solely for the executive branch, (2) with powers shared between or delegated by the legislative, or (3) neither.
Presidential immunity is strongest in category 1, non-existent in category 3.
Presidential immunity is strongest in category 1, non-existent in category 3.
Presidents have total immunity in category 1. Otherwise, it would give Congress & the judiciary power over the executive in an area where it is supposed to have exclusive power.
This opinion focuses on category 2: where congress delegates or shares power with the president.
This opinion focuses on category 2: where congress delegates or shares power with the president.
The other axis relevant here is whether proceedings are civil or criminal.
A president's official acts (which encompass both categories 1 and 2) are absolutely immune from civil "money damages" lawsuits.
In terms of criminal law, though, we have far less clarity.
A president's official acts (which encompass both categories 1 and 2) are absolutely immune from civil "money damages" lawsuits.
In terms of criminal law, though, we have far less clarity.
SCOTUS today laid out the tension: the president needs to be able to act within the scope of office without fear of politically-motivated prosecution after leaving office; but the president also cannot be "above the law."
SCOTUS today said: "Taking into account these competing considerations, we conclude that the separation of powers principles [] necessitate at least a presumptive immunity from criminal prosecution for a Presidentβs acts within the outer perimeter of his official responsibility."
What is presumptive immunity?
It's a presumption that a president is immune from criminal prosecution for official acts, but that presumption can be "rebutted" with a showing that prosecution wouldn't violate separation of powers.
It's a presumption that a president is immune from criminal prosecution for official acts, but that presumption can be "rebutted" with a showing that prosecution wouldn't violate separation of powers.
But SCOTUS today said the president has "at least" presumptive immunity.
The majority said whether immunity here is presumptive or absolute is not a question that needs to be resolved today. In essence, today's decision kicks that can down the road.
The majority said whether immunity here is presumptive or absolute is not a question that needs to be resolved today. In essence, today's decision kicks that can down the road.
Up until now, I've only talked about SCOTUS's opining on presidential immunity *generally*.
What does that mean for Trump's case *specifically*?
Well, this may seem strange, but nothing really.
What does that mean for Trump's case *specifically*?
Well, this may seem strange, but nothing really.
The key question for Trump's case is whether Trump's conduct around January 6th was "official conduct."
SCOTUS says the lower courts haven't adequately addressed that & SCOTUS can't address the question on its own initiative. It can only review lower court findings.
SCOTUS says the lower courts haven't adequately addressed that & SCOTUS can't address the question on its own initiative. It can only review lower court findings.
And so SCOTUS goes on to analyze the alleged conduct to assess whether and what conduct qualifies as "official conduct," but with the caveat that it can't do so comprehensively because it doesn't have as comprehensive record.
SCOTUS addresses Trump's alleged conduct in 4 buckets: 1) challenging election results in court, 2) leaning on VP Pence to thwart certification, 3) leaning on state officials and private parties to change state election results, and 4) Trump's speech on and around January 6th.
Bucket 1:
SCOTUS says this conduct has absolute immunity. The executive is given sole authority to investigate and bring cases. If you could get around this by saying the cases were "shams," every challenge to presidential judgment in bringing cases would claim as much.
SCOTUS says this conduct has absolute immunity. The executive is given sole authority to investigate and bring cases. If you could get around this by saying the cases were "shams," every challenge to presidential judgment in bringing cases would claim as much.
Bucket 2:
SCOTUS says VP presiding over certification is generally not an Executive function, but some VP acts presiding over Senate may be.
SCOTUS instructed lower court to determine whether prosecution on these grounds would "intrude on Executive function."
SCOTUS says VP presiding over certification is generally not an Executive function, but some VP acts presiding over Senate may be.
SCOTUS instructed lower court to determine whether prosecution on these grounds would "intrude on Executive function."
Bucket 3:
SCOTUS says president doesn't have authority over states' elections. They suggest "find me 10,000 votes" & plots to replace slates of electors aren't immune.
But they admonish the lower court for not giving them a full record to assess other conduct in this bucket.
SCOTUS says president doesn't have authority over states' elections. They suggest "find me 10,000 votes" & plots to replace slates of electors aren't immune.
But they admonish the lower court for not giving them a full record to assess other conduct in this bucket.
Bucket 4:
SCOTUS says some presidential speech is squarely official conduct, other presidential speech isn't & it's a very "fact specific" inquiry & so the lower court needs to do the fact finding to determine precisely for each of the things Trump was alleged to have said.
SCOTUS says some presidential speech is squarely official conduct, other presidential speech isn't & it's a very "fact specific" inquiry & so the lower court needs to do the fact finding to determine precisely for each of the things Trump was alleged to have said.
In sum: presidents are absolutely immune when investigating & bringing cases; presidential immunity is shakey at best regarding conversations with VP on certification; presidents aren't immune for pressuring state election officials; the lower court needs to determine the rest.
Next, SCOTUS makes clear that, if the court determines he has immunity for a given act, he cannot face criminal prosecution for that act. They also add that those acts cannot be considered by the jury when prosecuting the president for other, non-official acts.
Finally, SCOTUS considers and rejects Trump's "far broader" argument for immunity. Trump's team argued that he can't be prosecuted for anything unless he is first impeached & removed for it. SCOTUS says there's no textual support for this argument.
The dissent, and commentators all over social media, are decrying this decision and saying things like "this decision would allow the president to assassinate his political opponent using Seal Team 6." There is absolutely n osupport in the majority opinion for this.
SCOTUS could, and likely will, rule further on immunity in this case. But it has also signaled several instances of Trump's conduct that do not have immunity and/or may not have immunity depending on what the lower court ultimately finds when it does more fact finding.
For the dissent, and for these social media takes, the opinion has this note:
"[T]hey strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today."
"[T]hey strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today."
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