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‘Above the law’ in some cases: Supreme Court gives Trump − and future presidents − a special exception that will delay his prosecution

Claire B. Wofford, College of Charleston, The Conversation on

Published in News & Features

Writing for the majority, Chief Justice John Roberts rejected Trump’s claim of absolute immunity from criminal prosecution for official acts taken while he was president, as well as the government’s claim that a former president is not “above the law” and can be criminally prosecuted for all actions done while in office.

Instead, the court ruled that some of the crimes that Trump is alleged to have committed are protected by immunity, but others may not be.

The justices sent the case back to the lower court to make a distinction between the alleged crimes that are now protected acts under the court’s opinion and the ones that remain open to prosecution.

The landmark opinion set general boundaries around how much of a president’s behavior is protected from prosecution. To do that, the court first determined that a president is absolutely immune for actions taken that are part of his “core” executive functions. These include the powers explicitly given to him in the Constitution, such as the pardon power and the power to remove executive branch officials, which are part of his “exclusive authority” into which neither Congress nor the judicial system may intrude.

For his noncore powers, which include all those not specifically listed in the text of the Constitution, such as the formulation of domestic policy, the court took a more nuanced approach.

Attempting to balance the “public interest in fair and effective law enforcement” with the need of the presidency to operate “vigorously” and free from fear of unwarranted prosecution, the majority held that the president has at least “presumptive immunity” for all acts that fall within the “outer perimeter of his official responsibility.”

 

The court did not clarify precisely what acts fall within this “outer perimeter.”

In an earlier case, Nixon v. Fitzgerald, for example, the court decided in 1981 that former President Richard Nixon’s directive while president to the secretary of the Air Force for how it should be staffed and organized was within that outer perimeter. In its opinion in the Trump case, the court emphasized that as long as the action is not “manifestly or palpably” beyond the perimeter, it should be considered official.

In those instances, the government must demonstrate that there would be “no dangers of intrusion on the authority and functions of the Executive Branch” before it can proceed with a prosecution.

The court also ruled in the immunity case that the president enjoys no immunity from criminal prosecution for nonofficial, private conduct.

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