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Trump vs. United States, ___ U. S. ___, 144 S. Ct. 2312, 219 L. Ed. 2d 991, 2024 U.S. LEXIS 2886 (July 1, 2024), is decried by some as inviting the President of the United States to be a dictator and by others as a decision which will tie the hands of the activist presidents we demand in the United States.
There are even those who claim that the author of the Opinion, Chief Justice Roberts, is a "Trump appointee," insinuating that the Chief Justice is biased. Chief Justice Roberts has served since 2005, however, and was nominated by President George W. Bush.
In the first paragraph the Chief sets forth in succinct terms the nature of the case and the job of the Court:
This case concerns the federal indictment of a former
President of the United States for conduct alleged to
involve official acts during his tenure in office. We consider
the scope of a President's immunity from criminal prosecution.
Trump v. United States, 144 S. Ct. at 2324.
The Opinion notes that President Trump was charged with four major criminal acts related to the election and an attempt to overturn the same. The former President argued that the five components of the crimes charged were properly characterized as follows:
1. Public statements about the administration of the federal election.
2. Communication with senior Justice Department officials concerning the investigation of election fraud and with respect to choosing the leadership of the Department.
3. Communication with state officials by administration of the federal election in the exercise of their official duties with respect to the election.
4. Communication with the Vice President and members of Congress about the exercise of their official duties with respect to the election certification, and
5. Authorization or direction to others to organize contingent slates of electors in furtherance of the President's attempts to convince the Vice President to exercise his official authority in a manner advocated by Defendant President.
Id. at 2325. The Court clearly, and in best law school fashion, stated the question as follows:
Whether and if so to what extent, does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?
In judicious fashion, the Court set forth what the parties did and did not dispute. The parties agreed to the following:
1. A former president can be subject to criminal prosecution for unofficial acts committed while in office.
2. Some of the conduct described in the indictment includes actions taken by President Trump in his unofficial capacity.
Id.
The Court summarized its conclusions upfront:
The President has "some" immunity from criminal prosecution for official acts during his tenure in office.
2. As to "core" constitutional powers, the immunity must be absolute.
3. As for remaining official actions, the President is also entitled to immunity, but the Court did not decide whether the immunity was absolute or whether presumptive immunity applied.
Id. at 2327 (emphasis added).
The majority determined that: "Congress cannot act on, and courts cannot examine, the President's actions on subjects within his 'conclusive and preclusive' constitutional authority." Id. at 2328. "It follows that an Act of Congress--either a specific one targeted at the President or a generally applicable one--may not criminalize the President's actions within his exclusive constitutional power. Neither may the courts adjudicate a criminal prosecution that examines such Presidential actions." Id.
Perhaps most debatable about this Opinion is the statement that: "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." Id. The Court believed this was necessary so that a president would not be charged and possibly imprisoned for conduct of "official actions." "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.'" Id. at 2331-2332 (quoting Fitzgerald v. Nixon, 457 U. S. 731, 754 (1982)(civil action by fired Air Force employee for actions of President Nixon in approving Air Force reorganization).
Lest the public question the extent of this Opinion, the Court unequivocally stated that: "As for a President's unofficial acts, there is no immunity." Trump v United States, at 2332. Clinton vs. Jones, 520 U.S. 681 (1997), established as much. In Jones, President Clinton had been sued by Paula Jones for sexual misconduct on his part which occurred prior to his becoming president. President Clinton paid $850,000 to settle that case, together with a non-disclosure clause. The Court distinguished that case from one that involved official actions and reaffirmed that "[t]he separation of powers does not bar a prosecution predicated on the President's unofficial acts." Trump, at 2332.
Perhaps the most important part of the government's case against Trump is his attempt to use the Vice President to reject the electors or to substitute a new slate of electors supporting a Trump victory. The Court struggled with this component of the case and held that in spite of the Vice President's "expansive role of advising and assisting the President within the Executive Branch, the Vice President's Article I responsibility of 'providing over the Senate' is 'not an executive branch' function." Id. at 2337(internal citations omitted).
In sum, the government may argue that consideration of the President's communications with the Vice President concerning the certification proceeding does not pose an intrusion upon the authority and function of the President. It will be the government's burden to rebut the presumption of immunity afforded the President. In that respect, the case was remanded to the district court to assess, with appropriate input from the parties, whether a prosecution involving Trump's alleged attempts to influence the Vice President's oversight of the certification proceedings in his capacity as President of the Senate would impose any dangers of intrusion on the authority and functions of the Executive Branch. Id. Ultimately, this author believes, the question should be answered "no." by the lower courts. The Supreme Court of the United States will then undoubtedly take another look at whether such a determination is in keeping with the Court's understanding of the executive function.
The Court concluded by making it clear that the President does not have absolute immunity. There is no support for the proposition that a president who evades impeachment during his term in office can never be held accountable for his criminal acts in the ordinary course of law. See id. at 2342. See also id. at 2347 ("The President is not above the law").
The government, which brought this case, "broadly agrees" that the President's official acts are entitled to "some" degree of constitutional protection. Id. at 2343. The argument between the parties is how much. No one contends that the President has no immunity for the acts charged. The question is how broad is that immunity and what evidence may be introduced to support or eviscerate the immunity of the executive for misconduct in office?
Answering the dissent Roberts wrote that "unlike anyone else" the President "is a branch of government..." Id. at 2345-2346. "[T}he Constitution vests in the President, "sweeping powers and duties." Id. at 2346. The President may execute those powers "forcefully", but the President is not "above the law." Id.
The case will take a long and winding road, and ultimately a decision will be based upon the record developed at the trial court level in terms of what occurred, the facts in support of the alleged actions, and whether they constitute official or unofficial acts of the Executive of the United States of America.
Clifford A. Rieders is a board-certified trial advocate in Williamsport.