Who Is Donald J. Trump?

My VIP for this week is former President Donald J. Trump simply because he was a big winner in a second major decision passed by the Supreme Court. As reminder by John G. Malcolm at The Daily Signal, the high court’s March 4 decision, Trump v. Anderson, the justices voted “unanimously that Trump could not be disqualified from the presidential ballot under the insurrection clause of the 14^th Amendment.” 

Malcolm reported today that the Supreme Court made “one of the most significant constitutional decisions it has ever issued with respect to the separation of powers and the powers of the presidency” in its 6-3 decision in Trump v. U.S. The majority of the justices declared that “former presidents are entitled to broad immunity from criminal prosecution after they leave office for acts committed while in office.” Malcom wrote that this decision “will likely have a bigger impact on how presidents are likely to act in the future while in office.”

In the wake of criminal charges brought against him by special counsel Jack Smith for acts Trump undertook while contesting the outcome of the 2020 presidential election and during the events of Jan. 6, 2021, Trump asked the Supreme Court to decide whether a former president has absolute immunity from criminal prosecution for his “official” acts as president.

This is an issue of first impression before the high court. The closest case on point is Nixon v. Fitzgerald (1982), in which the court held that a president has absolute immunity from civil liability arising from any acts “within the ‘outer perimeter’ of his official responsibility.”

Trump argued that former presidents should be absolutely immune from criminal prosecution for any “official acts” they undertook as president, with the sole exception being for acts which led to a president’s impeachment by the House of Representatives and subsequent removal from office by the Senate after a trial.

As support, Trump cites the Constitution’s impeachment judgment clause, which provides: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Trump noted that, although the Democrat-run House impeached him twice while he was in office, the Senate acquitted him both times following a trial. Moreover, Trump claims, the second impeachment trial covered “much of the same conduct charged in the indictment.” …

The high court stated that, as Trump’s lawyers had conceded during oral argument, former presidents are not immune for unofficial acts that they undertake in office…. But the court provided some guidance about how to distinguish between what is an official act and what is an unofficial act, while leaving it up to the trial court to take the first crack at applying these standards to the allegations against Trump.

Borrowing from Fitzgerald, the court held that former presidents are presumptively immune from prosecution for actions they undertook within the outer perimeter of their official responsibilities, and that it is the prosecution’s burden to present enough evidence to overcome that presumption by showing that such a prosecution would pose no “dangers of intrusion upon the authority and functions of the Executive Branch.”

Moreover, Roberts stated, a reviewing court may not inquire into a president’s motives, since conducting such a “highly intrusive” inquiry would undoubtedly involve courts examining sensitive internal deliberations based on mere allegations of wrongdoing. Such “broad-reaching discovery,” Roberts wrote, could “seriously cripple the President’s exercise of his official duties.”

Furthermore, the Supreme Court added that testimony or private records of the president or his advisors probing such conduct may not be admitted as evidence at trial, adding to the government’s burden of persuasion.

The Supreme Court left many issues to the trial court and the D.C. Circuit to ponder, while dispatching some allegations against Trump. These included “Trump’s discussions with Justice Department officials” as being part of a president’s authority; communications between President and Vice President being part of their scope of office; serious doubt was cast on President’s discussion with the President of the Senate (V.P.); President’s communication with state election officials.

Regarding Trump’s speeches and social media posts on and around Jan. 6, 2021, when the Capitol riot occurred, Roberts left open the possibility that some of those remarks “perhaps as a candidate for office or party leader,” might fall on the side of unofficial conduct. But the chief justice added that “Presidents possess extraordinary power to speak to his fellow citizens and on their behalf,” and as a result, “most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities.”

Roberts concluded his majority opinion by stating:

The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But Congress may not criminalize the President’s conduct in carrying out the responsibilities of the Executive Branch under the Constitution. And the system of separated powers designed by the Framers has always demanded an energetic, independent Executive. The President therefore may not be prosecuted for exercising his core constitutional powers, and he is entitled, at a minimum, to a presumptive immunity form prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party.

Trump v. U.S. and Fischer v. U.S. will impact the D.C. case against Trump. In addition, Justice Clarence Thomas raised an issue that will impact the classified document case against Trump in Florida: “whether Smith’s designation as special counsel by the Justice Department violates the Constitution’s appointments clause” because he was not nominated by a president or confirmed by the Senate. The Trump v. U.S. decision will also impact the Georgia case against Trump.