What SCOTUS Actually Held in Trump v. United States

by MOLLY MCCANN SANDERS

The headlines that flashed around the world after the Supreme Court decided Trump v. United States mostly proclaimed that Trump won his immunity suit. The truth is that the opinion is far more nuanced.

The United States Supreme Court held that the U.S. President is immune for core constitutional conduct, that is, conduct within his exclusive and preclusive constitutional authority. Examples of this include the president’s power of appointment, the pardon power, and various foreign relations powers, among others. As a result, Trump’s discussions with his Attorney General and DOJ officials are absolutely immune because they fall within that core constitutional power.

Moving beyond his core constitutional power, into both those actions where he shares constitutional power with Congress and those actions that are simply considered within the expansive outer perimeter of official action, the Court held that the president is at least presumptively immune, but may be absolutely immune. The Court chose not to decide that question yet: “[T]he current stage of the proceedings in this case does not require us to decide whether this immunity is presumptive or absolute. Because we need not decide that question today, we do not decide it. ‘[O]ne case’ in more than ‘two centuries does not afford enough experience’ to definitively and comprehensively determine the President’s scope of immunity from criminal prosecution.” This left open the question on immunity with respect to Trump’s discussion with VP Pence and conversations with local and state officials, among other activity.

The President has no immunity for his unofficial acts, so the question then becomes, how to determine what is and what is not an official act? The Court noted more than once that the proceedings below were expedited and did not consider this key distinction:

Despite the unprecedented nature of this case, and the very significant constitutional questions that it raises, the lower courts rendered their decisions on a highly expedited basis. Because those courts categorically rejected any form of Presidential immunity, they did not analyze the conduct alleged in the indictment to decide which of it should be categorized as official and which unofficial. Neither party has briefed that issue before us (though they discussed it at oral argument in response to questions). And like the underlying immunity question, that categorization raises multiple unprecedented and momentous questions about the powers of the President and the limits of his authority under the Constitution. As we have noted, there is little pertinent precedent on those subjects to guide our review of this case—a case that we too are deciding on an expedited basis, less than five months after we granted the Government’s request to construe Trump’s emergency application for a stay as a petition for certiorari, grant that petition, and answer the consequential immunity question. See 601 U. S., at ––––, 144 S.Ct. at ––––. Given all these circumstances, it is particularly incumbent upon us to be mindful of our frequent admonition that “[o]urs is a court of final review and not first view.” Zivotofsky v. Clinton, 566 U.S. 189, 201, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012) (internal quotation marks omitted).

Of course, Trump’s varied counsel made this complaint more than once in the courts below, but Smith (the special counsel) was hell bent on hurrying forward to convict Trump before the election. Now, all these questions are remanded to the lower courts to consider again. The Court provided some guideposts to the lower courts as they start to draw that line between official and unofficial conduct, but the issue of immunity will almost certainly land back in front of the Supreme Court in a future term. At that time, the Court could again consider whether the broader category of official conduct should be absolutely or only presumptively immune.

Importantly, the Court did decide that any actions that are immune cannot be used as evidence in a prosecution. That could significantly hamstring a prosecution that might hit upon some technically unofficial act but rely upon official acts to prove up the charge.

In short, this was a good decision for Trump, but it was not an absolute win. There is a lot of litigation to slog through again before many of the immunity questions are conclusively determined.

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