Trump v. United States This is one of the Supreme Court’s most important separation of powers cases. While Roberts is often described as a minimalist, here he’s quite the opposite. Justice Sotomayor aptly noted in her dissent that “in seeking to protect certain acts as official while refusing to recognize any acts as unofficial, the majority engages in judicial activism, not judicial restraint. “
The court could have simply addressed whether specific charges in the indictment merited immunity. But Chief Justice Roberts didn’t stop there. This opinion is quite general. Chief Justice Roberts laid out a framework to address various aspects of presidential power. he proposed a Presidential Immunity Trichotomy.
Supreme Court justices often develop three-level tests. Perhaps most famous is the triptych of Justice Jackson youngstown. The semester framework is gone but not forgotten roe. Now trump card Rule of thirds.
First, “such immunity must be absolute at least so far as the President exercises core constitutional powers.” These powers are described as “determinative and exclusive,” “exclusive,” and “the exclusive scope of constitutional power.”
Second, there is at least “presumptive immunity” for “official acts” other than “core constitutional powers.” The court explained that “the President’s actions within the scope of his official duties are at least presumptively immune from criminal prosecution”. The court provided immunity “unless the government can demonstrate that imposing a criminal prohibition on the conduct would not create a ‘danger of infringement of the powers and functions of the executive branch'”.
Third, there is no immunity for all other “private” or “unofficial” acts.
Why did Roberts write about this idea so extensively? I think the Chief Justice is troubled by the laws that have been filed against President Trump over the years. Paycheck lawsuits have emerged from the moment Trump took office. Early in the president’s term, special counsel Robert Mueller was appointed to investigate Trump’s ouster of the FBI director — a power that courts have explicitly recognized cannot be criminalized. Mueller’s investigation generally seeks to explore Trump’s motives and examine his interactions with senior advisers – conduct that the court has said cannot be further criminalized. Roberts had a front-row seat at Trump’s first impeachment trial, which was premised on the president’s exercise of foreign policy powers—again, a more “core” presidential activity. (I will revisit the Mueller investigation and Impeachment 1.0 in another post.) Now, instead of pursuing a targeted indictment of apparently private conduct, Special Counsel Smith has chosen to present an error based on a stretched reading Prosecution sweeps away federal laws on many official actions.
Roberts has seen what happened before and can foresee what will happen in the future. So he put his foot down. To prevent future legal problems, the chief established broad boundaries for where presidential power begins and ends.
