The Supreme Court Ruling on Presidential Immunity: Much Ado About Nothing

Spoiler: No, The Supreme Court Did Not Give Trump (Or Any President) Absolute Immunity

On July 1, 2024, the Supreme Court of the United States (‘SCOTUS’) looked at the Constitutional standard for ‘Presidential Immunity’: the concept that the President is immune from prosecution and liability for actions he takes in his official Presidential capacity, but not for unofficial conduct. Since then, the mainstream media and democratic elite—including, of course, Kamala Harris herself—have engaged in non-stop fearmongering, telling the masses that Trump was granted total immunity to do whatever he wants while in office, and wondering out loud about how he might use that power to jail or assassinate political opponents. In fact, as recently as October 2024, Kamala Harris shouted the following at a rally:

So much is on the line in this election. And this is not 2016, and it’s not 2020. The stakes are even higher, because a few months ago the Supreme Court told the former President that he is effectively immune, no matter what he does in the White House. Now just imagine: Donald Trump with no guard rails!

But did the SCOTUS opinion really say that? Any competent attorney that read the SCOTUS opinion, whether conservative or liberal, was left scratching their head. It simply did not.

Facts of the Case

Trump appealed this case to the Supreme Court after two lower courts declined to dismiss the federal indictments against him for allegedly obstructing the collection, counting, and certification of election results while he was still President. Trump moved to dismiss the indictment based on Presidential Immunity, arguing:

(1)   The President “has absolute immunity from criminal prosecution for actions performed within the outer perimeter of his official responsibilities”; and
(2)   “the indictment’s allegations fell within the core of his official duties.”

Legal Background

First, to better explain the SCOTUS opinion, it’s important to explain some basic legal concepts:

Indictment: Before a criminal case ever gets to trial, and before the court actually hears any evidence, the prosecution has to formally charge the suspect with a crime. There are several ways to do this, one of which is an indictment. An indictment is an extremely low threshold legal proceeding where the prosecution essentially just identifies the person they wish to charge and the law they allege was violated. The joke in law school is that “you can indict a ham sandwich,” meaning that no real, admissible evidence is needed—it’s more of a checklist item than anything.

So then, the first thing we must make clear is that Trump was never convicted of obstructing the election process. Trump was merely indicted for these election charges. This SCOTUS opinion is merely answering the question of whether it was proper to indict him in the first place; whether the case could even go to trial.

Presumptive: though this is a common English word, it has an important legal significance. A trial largely hinges on which side has the burden of proving that something did or did not happen. Essentially, when you don’t have the burden of proof, you win merely if the other side fails to prove their case, not necessarily because you proved yours. The word “presumptive” indicates a burden—it indicates what the Court will assume to be true, unless they are convinced otherwise by the party challenging that assumption. Here, when they use the term “presumptive immunity”, this means they will assume the President gets immunity, unless the other side can show why the specific circumstances warrant an exception to such Immunity.

Precedential Effect: When the Supreme Court issues an opinion, it doesn’t just apply to the case at hand: the decision has the effect of law and applies to every court and every case where the same question arises. Thus, this is not a case that gives Trump any special immunity, it outlines the boundaries of Presidential Immunity that will apply to all past, present and future presidents. Right now, the Biden-Harris administration is enjoying the “immunity” established by the Supreme Court’s ruling. If you listened only to Kamala Harris and the mainstream media, you would think the Supreme Court’s opinion somehow gave immunity to Trump, specifically. This is simply not true.

Remand: In Anglo-American legal procedure, generally, the appeals courts decide how the written law should function, and the trial courts apply the law to the actual facts of each case. A “Remand” is when higher courts weigh in on how an area of law should work, but ultimately send the case back down to a lower court, to decide the outcome of the case under the law as they’ve explained it.

SCOTUS, however, is special—they can decide fact-specific outcomes like a trial court, as well as clarify and resolve legal questions or uncertainties, like an appeals court. In situations like the case at hand, where SCOTUS is deciding a novel, uncertain legal issue (essentially “creating” new law), SCOTUS explains how to approach the issue, but ultimately leaves it up to the trial court to perform the intensive factual inquiry and determine the outcome of the case.

Here, similarly, after explaining the legal standard, SCOTUS remands certain fact-specific questions for the lower court to decide themselves.

I.                Historical Background of Presidential Immunity

Throughout the opinion, SCOTUS delves into the history of the Presidential Immunity afforded by the US Constitution, and the logic behind such immunity. The Court explains how historical Supreme Court decisions recognize the need to protect the President from liability for acts within the “perimeter of his official responsibility.” They explain that, given the immense gravity and impact of Presidential decisions, we simply cannot have “the threat of trial… [or] imprisonment” distorting Presidential decision-making or causing “hesitation to execute the duties of his office fearlessly and fairly”.¹ Furthermore, it’s in everyone’s best interests that this is the case: we are all better off if the President can make important Presidential decisions without having to worry about whether he might be prosecuted after the fact.

So, by now it should be obvious that “Presidential Immunity” is not a new concept. The concept is enshrined in the Constitution and based on decades of other SCOTUS decisions. The reason SCOTUS was forced to clarify the concept here is because it was faced with “the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.”

Now that we’ve explained the logic and history of Presidential Immunity, let’s get into the holding itself.

II.             The Easy Question: Can a President be Indicted if Presidential Immunity Applies?

Regarding a court’s ability to indict a President for conduct which, due to Presidential Immunity, he could not be prosecuted for, SCOTUS ultimately concludes: “Presidents cannot be indicted based on conduct from which they are immune from prosecution.”

Pretty simple. If a President is immune from prosecution, it follows that it does not make sense to indict him for charges that he can’t be prosecuted for. Now for the tricky bit.

III.           The Broad Decision: When Presidential Immunity Applies (And When it Doesn’t)

So when does Presidential Immunity apply? At the outset of SCOTUS’ opinion, they summarize their answer to this question as follows:

1.     There is no [Presidential] immunity for Unofficial Acts.

2.     Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.

3.     And he is entitled to at least presumptive immunity from prosecution for all his [other] Official Acts.

Thus, there are three categories, each of which carries a different level of immunity from prosecution: (1) Unofficial Acts, (2) Official Acts that are within the President’s “conclusive and preclusive Constitutional authority”, and (3) Official Acts that are not within the President’s “conclusive and preclusive Constitutional authority”.

In the pages that follow, SCOTUS makes clear exactly what each category means and how the Court reached their conclusions. We will unpack each of these points before explaining how SCOTUS applied this holding to Trump’s case. For clarity’s sake, we will present the court’s ruling in its logical sequence, rather than in the order as written by the court.

1.     Unofficial Acts: No Immunity

SCOTUS explains that “the first step in deciding whether a former President is entitled to immunity from a particular prosecution is to distinguish his official from Unofficial Actions.”

The Court explains there is no danger of distorting the President’s decision-making by prosecuting unofficial conduct because such conduct is unrelated to his duties under the Presidency. Unofficial Acts are, by definition, unrelated to the President’s job and so threats of prosecution for these acts do not undermine his ability to do his job. Thus, the Court very simply states “there is no immunity for Unofficial Acts.” Again, simple. If a President murders his wife while in office, he will be tried and imprisoned the same as you or I would be—murderous conduct is certainly not part of the President’s duties, nor will prosecuting such behavior impede future Presidents’ abilities to fulfill their duties.

But what about Official Acts? As the Court explains, there are two types of Official Acts, which afford the President different levels of immunity from prosecution.

2.     Official Actions Under the President’s Constitutional Authority: Absolute immunity

In the first category are Official Acts for which the President is absolutely immune from prosecution and liability. What falls into this category?

The Court notes that Article 1, cl. 1. of the Constitution bestows on the President duties of “unrivaled gravity and breadth” which therefore require “conclusive and preclusive” authority to act. These duties are also called Core Constitutional Powers. Essentially, when the President is executing an explicit duty of the President—a duty which has been granted explicitly under the Constitution only to the President—then (1) the President is immune from prosecution for these acts, and (2) Congress may not pass laws that criminalize these acts. Basically, as long as the President is ‘staying in his lane’ (doing things the President is exclusively granted the power to do), he is absolutely immune from liability, and the other branches of government (Congress and the Judiciary) need to mind their business.

Luckily, these “conclusive and preclusive” Official Actions are easy to spot—we have a pretty good idea of what the President’s Core Constitutional Powers are. However, these core powers do not comprise the entirety of official Presidential power. There are other powers that, though not explicitly granted by the Constitution, have been given to the President by Congress (or which the President shares with Congress). These are called ‘discretionary powers’. The Court says discretionary powers are Official Acts, but that they are in the “twilight zone” of presidential power. As such, discretionary powers necessitate a lower level of immunity from prosecution than Core Constitutional Powers.

3.     “Discretionary” Official Actions: Presumptive Immunity

How big is this third category? Well, the Court recognizes that most of the President’s responsibilities are “discretionary”, so immunity applies to all Presidential actions “so long as they are ‘not manifestly or palpably beyond [his] authority.’” Basically, if it is the President’s job or within his powers to do something, but that power does not come directly from the Constitution, it is a discretionary power.

For this third category, the President does not get absolute immunity but enjoys only a presumptive immunity from criminal prosecution. Remember: this just means that he is immune unless the prosecution can give good reason why Presidential Immunity is not applicable under the circumstances. But what would that look like? When will the court decide that, under the circumstances, the presumption of immunity has been overcome and the President can be prosecuted?

The Court lays out the following standard: The President must be immune from prosecution for an Official Act unless the Government can show that criminalizing that act would pose no “danger of intrusion on the authority and functions of the Executive Branch.”

Thus, the question is whether, under the circumstances, prosecuting the President for this type of Official Act would neither disrupt the President’s authority, nor his ability to fulfill his duties. Will doing so cause future Presidents be less effective or less decisive in their role? If the prosecution can prove the answer to be “no”, the immunity goes right out the window. Sue away.

For example, the President has the authority to dispatch Seal Team 6—which would be an Official Act. Does that mean he’s immune from prosecution if he authorizes Seal Team 6 to assassinate a political rival for personal gain, as hypothesized by the dissenting Justice Sonya Sotomayor? Obviously Not. It does not intrude on the President’s authority or functions to have threat of prosecution deter leveraging the power of the Presidency to murder those threatening a President’s individual grasp on power. Realistically, how would this prosecution disrupt the President’s ability to fulfill his duties, or jeopardize the President’s effectiveness or decisiveness in his role? It wouldn’t.

4.     Roadmap:

(1)   Was the President acting “officially” pursuant to his “conclusive and preclusive” Constitutional grant of authority?
IF YES: immunity applies. IF NO: proceed to (2).

(2)   Was the President still acting officially, because his conduct fell within the “outer perimeter” of his authority (discretionary authority)?
IF NO: prosecute away! IF YES: Presumptive Immunity applies. Proceed to (3).

(3)   Does it reeeeally undermine the authority or function of the President if we prosecute him anyways?
IF YES: immunity applies. IF NO: prosecute away!

IV.           Applying the Law: Does Presidential Immunity Preclude Trump’s Indictment?

The Court then applies their holding to the facts of Trump’s indictment. The first step is to determine if the alleged conduct qualifies as an Official Act. If so, the question is whether Trump had specific Constitutional authority to engage in that conduct, or mere discretionary authority.

1.     Department of Justice Allegations

The indictment first alleges that Trump can and should be prosecuted for his discussions with the Executive Branch’s own Department of Justice. This part of the indictment alleges that:

1.     Trump and his co-conspirators attempted to leverage the Justice Department’s power and authority to convince certain States to replace their electors with Trump’s electors.

2.     Trump met with the Acting Attorney General and other senior Justice Department and White House officials to discuss investigating purported election fraud and sending a letter from the Department to those States regarding such fraud.

3.     After the Acting Attorney General resisted Trump’s requests, Trump repeatedly threatened to replace him

The “Official Conduct?” question is easily answered “yes”—SCOTUS points out that the prosecution does not even dispute that these Justice Department-related allegations involve Trump’s use of official power. The second question, then, is whether this official power is derived from the Constitution (warranting absolute immunity) or from the President’s discretionary powers (warranting a rebuttable presumption of immunity).

Ultimately, SCOTUS is satisfied that the conduct in these allegations involves the “conclusive and preclusive” authority of the Presidency, thus warranting Absolute immunity. Remember, the question is whether the Constitution has granted the authority to the President exclusively.

The Court explains that the Department of Justice, as part of the Executive Branch, is given “exclusive authority and absolute discretion” to “decide which crimes to investigate and prosecute, including with respect to allegations of election crime.” The President’s Constitutionally mandated management of the Executive Branch necessitates “unrestricted power to remove the most important of his subordinates—such as the Attorney General—in their most important duties”. Accordingly: “Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials.”

2.     Vice-Presidential Certification Powers

SCOTUS then considers the indictment allegations that “Trump and his co-conspirators” had “attempted to enlist the Vice President” to use his ceremonial role at the January 6 certification proceeding to “fraudulently alter the election results”, and that Trump specifically had several conversations pressuring the Vice President to reject States’ electoral votes or send them back to state legislatures for review.

Was this Official Conduct? SCOTUS states that whenever the President and Vice President discuss their official responsibilities, they engage in official conduct. Since it is the duty of the Vice President to preside over the January 6 certification proceeding, the Court concludes that Trump’s alleged attempts to “pressure the Vice President to take particular acts in connection with is role . . . thus involve official conduct.” So, as this is Official Conduct, Trump is at least presumptively immune from prosecution for these acts.

The next question is whether the certification process implicates the “conclusive and preclusive” Constitutional authority of the Presidency, thus warranting absolute immunity. Regarding the certification process, the Court says that Congress “has legislated extensively to define the Vice President’s role in the counting of the electoral votes,” and that the President “plays no direct constitutional or statutory role in that process.” So, while the certification of electoral votes is official conduct, since the certification power was granted by Congress and does not involve the President directly, it is not the type that warrants absolute immunity—only Presumptive Immunity.

The final question is thus whether, under these factual circumstances, the prosecution has overcome this Presumption of Immunity. Because this is a factual question (involving an analysis of the facts and circumstances specific to this case), it is not appropriate for the Supreme Court to decide this part of the question—that is a job for the lower courts to perform. The court thus remands this to the lower court (recall the definition of remand above) so that the lower court can apply the Presidential Immunity standard to the factual circumstances for themselves.

SCOTUS does provide some further instruction for this analysis: that this assessment will turn on whether a prosecution “involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and function of the Executive Branch.”

The Court performs a similar analysis for the indictment’s remaining allegations. For some allegations, such as those involving Trump’s communications with the public, the Court concludes that, depending on the context and subject matter, such communications might be Official (warranting at least Presumptive Immunity) or Unofficial (meaning no Presidential Immunity applies at all). Ultimately, the Court concludes that it is the job of the lower courts to decide these fact-specific questions, and remands the case to the trial court. 

In other words, SCOTUS definitely didn’t empower Trump to do anything he wants . . . they actually gave the trial courts a green light to determine whether Trump can be prosecuted or not under the circumstances.

Circling Back to Kamala Harris’s take on Presidential Immunity

So, was what Kamala Harris shouted at the rally really what this decision said? While the nuances of the case can be confusing, it is not a complicated answer: No.

The fact of the matter is, lawyers read hundreds of these opinions each year, and generally are exceedingly competent at breaking down what the Court says. This begs the question: did Kamala Harris (1) fail to understand a case that a second-year law student is qualified to summarize, (2) not read the case at all, before peddling the lie that the case gave Trump immunity, or (3) is she lying straight to your face? Is any answer remotely appropriate for someone aspiring to stand behind the seal of the President of the United States?

1. Nixon v. Fitzgerald, 457 U.S. 731 (1982); Clinton v. Jones, 520 U.S. 681, 694, n. 19 (1997); McDonnel v. United States, 579 U.S. 550, 575 (2016).