And Here It Is … The Immunity Thing

Trump v. United States

Held: 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. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Pp. 5–43.

(a) This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency. Determining whether and under what circumstances such a prosecution may proceed requires careful assessment of the scope of Presidential power under the Constitution. The nature of that power requires that a former President have some immunity from criminal prosecution for official acts during his tenure in office. At least with respect to the President’s exercise of his core constitutional powers, this immunity must be absolute. As for his remaining official actions, he is entitled to at least presumptive immunity. Pp. 5–15.

Of course, Trump will seize on this and declare he had absolute immunity for everything he did in office. The bit of nuance about “unofficial acts” is not going to register.

Update: Josh Marshall on the debate and its aftermath. No paywall. I’m in about the same place that he is.

18 thoughts on “And Here It Is … The Immunity Thing

  1. Is inciting an attack on the Capitol to stop the certification of the duly elected president-elect an "official act"?  Or taking classified documents upon leaving office and refusing to return them.  Or how about organizing a campaign to send phony electors to Congress for the certification?  Are these "official acts" of a president?

    We could reasonably ask: what classified documents belonging to the federal government that private citizen Trump refuses to return were shared with the Russians when Trump's plane was parked on the tarmac next to the Russian Embassy plane?

    And here we have a twice impeached, convicted felon with 91 indictments who is an adjudicated sexual abuser and serial liar running for president but its the current president, a man of decency and integrity, with one of the best records ever of delivery and performance who is being told to step aside.

    “America” has lost its collective mind. This is the beyond "Idiocracy"; this is Twilight Zone level stuff.

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    • Is inciting an attack on the Capitol to stop the certification of the duly elected president-elect an "official act"?  Or taking classified documents upon leaving office and refusing to return them.  Or how about organizing a campaign to send phony electors to Congress for the certification?  Are these "official acts" of a president?

      I wouldn't think so, but when it comes to Obvious Decisions the U.S. judiciary seems to need at least six months to arrive at a conclusion. Difficult decisions are just plain beyond them. 

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    • https://www.lawyersgunsmoneyblog.com/2024/07/trump-immunity-decision probably answers your questions better than anyone.

      From what they say, it sounds like he really does have immunity for everything, until it's proven he doesn't, and, they might be preparing for saying federal law supersedes local, which would also kill the Georgia prosecution.

      I don't understand how John Roberts is able to look at himself in the mirror. Maybe after he sold his soul, he doesn't cast a reflection?

      • "Worse than Dred Scott."

        What worries me now is the average voter out here bumb-fumbling along in a land of "reality", social media and fast food is totally oblivious to what this means.  Far too many are unconcerned to even bother themselves to learn anything, as long as they have a place to eat, shit, watch TV and play games.  harsh, but true.  If some were told you don't have to vote anymore they'd be happy with it.

        Trump is bad, the USSC is worse, but our biggest problem of all is an ignorant, apathetic electorate.

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  2. 6-3. In favor of Trump. It appears an official act is whatever Trump wants it to be. Full immunity for official acts.

    Goodbye democracy. Goodbye America. We hardly knew ye.

  3. The objective of the USSC is not to directly change the outcome of either federal trial. The objective is to DELAY the trial until after the election. If Trump wins, the prosecution(s) will be dismissed by DOJ. I do not think they can be buried permanently. A righteous DOJ could resurrect the charges in 2028 if the statute of limitations has not run out. But Trump intends to be the Imperial President and (somehow) set aside the Constitution by Executive Order. 

    I refuse to think Biden can't win the election. I'm not saying he will but nobody has scored a knockout and it's tied on points. 

    The decision today is judicially sound. POTUS IS supposed to be immune for official acts. Nothing Trump is charged with constitutes an official act. But the USSC opened the gate for EVERYTHING to be adjudicated in pre-trial motions and litigation that keeps Trump from standing trial. It's ENTIRELY partisan and that's the part that stinks to hell and back.

    We gotta go with the elements that will move voters. Abortion and women's rights. IVF. The proposals on contraception. I think there are specific proposals. Put the clip up of Trump on electric boats and the shark in an ad that closes: "You want this guy to be president?" Yeah, there's short clips of Biden looking confused in the debate. But Trump jumped the shark. 

    The trials aren't going to save us before the election. So first, win the election. The USSC has proven how over-the-top they are. We need the Democrats to end the filibuster as soon as we have the Senate again. (I predict 2026.)

    • The objective of the USSC is not to directly change the outcome of either federal trial. The objective is to DELAY the trial until after the election. If Trump wins, the prosecution(s) will be dismissed by DOJ. I do not think they can be buried permanently.

      The charges can be buried permanently, if Trump wins the White House.  All he needs is an attorney general who will insist there were no crimes, and destroy all evidence.

      We know that he has his pick of AGs that would take a properly prosecuted case, leading to a proper indictment, over issues of extreme importance to America, and say "this is a bogus political persecution, and we are dropping it, and destroying all records and evidence."

      Congress could impeach, but we know that more than 33 Republicans will swear to see impartial justice done, and then break their oath and vote to exonerate, without holding a trial. It happened twice.

      If Trump wins, and the Rs take the Senate, they can expand the SCOTUS to 13 judges, to reduce the risk that the Democrats will expand the court first. Remember: they swore before God (whom they'll claim to revere) that they would see impartial justice done, and immediately broke their oath – why would we expect their attachment to anything else would prevent them from doing that?

      It really is that bad – it's very much like Hitler getting a mulligan for the beer hall putsch, only worse. (Hitler actually went to jail for  treason for his participation in that. Trump didn't even have to face a trial for his autogolpe attempt!)

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  4. I really wish the immunity decision came with an explainer for us mere humans.

    I know it's not a good decision; the Roberts court wrote it, so it's a bad decision. What I don't know, is, did they write him a get out of consequences free, card? I swear, the US is the country that learned the least from Nazi Germany, or the most – and if the latter, they learned the wrong lessons, like "don't criminalize policy."

    "But your policy is mass murder!"
    "It's still *policy* – you shouldn't imprison people over political differences!"
    "Technically, we executed the Nazis, and only imprisoned them long enough to measure enough rope…."
    "See, that's JUST what we MEAN, making the poor Nazis *criminals* just because they had different policy prescriptions to handle antisemitism."

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    • I really wish the immunity decision came with an explainer for us mere humans.

      That's the problem with this decision; the average person has no idea what it means, and how it could impact them.  And the fear is that voters may not get it until it (and Trump if he wins) is entrenched, by which time it may be too late to do anything about it.  Some argue whether this decision gives the president king-like power now.  But a republican president so inclined, with this crooked USSC behind him, ready to rubber stamp whatever he wants to do, together would constitute a king, effectively.

      From what I understand, its being sent back to the lower court to flesh out the meaning of official and unofficial acts.  This means Judge Chutkan will get to set the parameters within the broad framework the USSC laid out in its decision, I assume, since I am no lawyer.  But if voters could grasp the meaning, I would bet a vast majority would not want someone as unstable and crooked as Trump as president.  

      One could argue, "trying to make sure the election was fair" which is how Trumpists describe J6, is an official act.  But you'd have to ignore the crimes along the way.  Common sense says that as a private citizen you can't take classified documents and refusing to return them as a private citizen, no argument needed that its not an official act.

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  5. How does this cover hiding top secret documents from the FBI after he left office? Even if stealing them from the White House while POTUS is corruptly deemed official, how is deliberately continuing to hide them as a civilian, after a request to return them, rendered immune?

  6. LET'S GET OUT THE VOTE!!!!  Trump lost by 7 Million votes last time.  Let's make is loss by 30 million!  And impeachment of six supreme court justices needs to begin ASAP!

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  7. Does it even matter how we vote? It looks like the Supreme Court has already decided we go straight to The Holy Fascist American Empire no matter how we vote.  Trump appointed monarch for life. He will only accept the results if he wins you know.

    • Bernie – if voting did not matter, they would not try so desperately to keep us from voting. But they love it when you ask that question.

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  8. Does the ruling give Biden authority he did not think he had in areas he'd have not (previously) considered using his power? I know that's really vague but I'm not ready to think in the terms of improperly using legal authority in unique ways in the last four months before the election. 

    But I'm influenced by this:

    https://www.youtube.com/watch?v=v010HXpfFSA

    Maybe there's an advantage in the new rules.

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  9. I don't think anyone has observed this. The USSC affirmed wide PRESIDENTIAL immunity. But they made NO move to extend it to include everyone below the president who also and actually does the dirty work at his direction. 

    Thus eighteen people (if I recall the number) went to jail for Nixon. We have not finished the tally for Trump by a long shot. All the trials for all the co-conspirators can go forward without Trump under the most generous reading of the USSC ruling.

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    • Exactly.  This is what I was thinking. I suppose TFG and the RNC could hire expensive lawyers for all of the conspirators, but that would cost a fortune. TFG can be pulled out temporarily and called an unindicted co-conspirator, and the other conspirator trials can proceed without being "election interference". The evidence in those trials will play as evidence against TFG in the court of public opinion.

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