# 1 - Trump v. U.S. - Majority - Kicks the Can Down the Road

The Supreme Court issued its opinion in Trump v. United States (here) the long-awaited decision on whether a U.S. President has immunity and what any immunity might cover. Let us not forget that this case comes to the Court because a US sitting president has been charged with the violation of criminal laws in the federal system. ("This case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.").  Here's what we find in the 119 pages of the opinions -

Majority - C.J. Roberts writes the opinion (Justices Thomas, Alito, Gorsuch, and Kavanaugh join, with Barrett joining except for  Part III–C) 

1. Fischer First - Note Footnote # 1 -  The lower Court has to first look at whether the 1512 counts can proceed post its opinion in Fischer. So two counts will need to be reviewed for this first.  The other two counts clearly pass this hurdle as they have no relation to section 1512. 
2. Kicking the Can Down the Road - The Court's conclusion is that:  "We conclude that under our constitutional structure of separated powers, the nature of Presidential 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 also entitled to immunity. At the current stage of proceedings in this case, however, we need not and do not decide whether that immunity must be absolute, or instead whether a presumptive immunity is sufficient." (my emphasis added)
3. Absolute Immunity - "We thus conclude that the President is absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority." (my emphasis added)
4. Presumption - But then the important question becomes - what is within that sphere and are we going to judge this question fairly and evenly within the courts. The Court here states: "we conclude that the separation of powers principles explicated in our precedent necessitate at least a presumptive immunity from criminal prosecution for a President’s acts within the outer perimeter of his official responsibility."
5. NY - You're Good - "As for a President’s unofficial acts, there is no immunity."
6. The Rest of the Cases - "The first step is to distinguish his official from unofficial actions. In this case, however, no court has thus far considered how to draw that distinction, in general or with respect to the conduct alleged in particular." 
7. The Court's Guidance (or Lack of Guidance) - "Certain allegations—such as those involving Trump’s discussions with the Acting Attorney General—are readily categorized in light of the nature of the President’s official relationship to the office held by that individual. Other allegations—such as those involving Trump’s interactions with the Vice President, state officials, and certain private parties, and his comments to the general public—present more difficult questions. Although we identify several considerations pertinent to classifying those allegations and determining whether they are subject to immunity, that analysis ultimately is best left to the lower courts to perform in the first instance."
   1.  Don't Use Motive  - "In dividing official from unofficial conduct, courts may not inquire into the President’s motives. Such an inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose, thereby intruding on the Article II interests that immunity seeks to protect."  
   2. Irrelevant if Against the Law - "Nor may courts deem an action unofficial merely because it allegedly violates a generally applicable law."
8. Court's Analysis (The important section that 1L students tend to miss) 
   1. Are You Listening AG Garland - "The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’”
   2. President Can Talk to DOJ  - "Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials." 
   3. So Mike Pence - What Did Trump Say? - "The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct." "We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch." 
   4. Was it Official or Unofficial - Electors - "Unlike Trump’s alleged interactions with the Justice Department, this alleged conduct cannot be neatly categorized as falling within a particular Presidential function. The necessary analysis is instead fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons."
   5. Court Let's You Know Where They Stand - "For these reasons, most of a President’s public communications are likely to fall comfortably within the outer perimeter of his official responsibilities. There may, however, be contexts in which the President, notwithstanding the prominence of his position, speaks in an unofficial capacity—perhaps as a candidate for office or party leader. To the extent that may be the case, objective analysis of 'content, form, and context' will necessarily inform the inquiry." 
   6. The Court May Be Back - "We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial. (my emphasis)
9. Majority Tells Dissenters - This is Not Doom  - "As for the dissents, they strike a tone of chilling doom that is wholly disproportionate to what the Court actually does today—conclude that immunity extends to official discussions between the President and his Attorney General, and then remand to the lower courts to determine 'in the first instance' whether and to what extent Trump’s remaining alleged conduct is entitled to immunity."
10. Why Is This? - "This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency?"
11. Majority's Closing Words - "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 from prosecution for all his official acts. That immunity applies equally to all occupants of the Oval Office, regardless of politics, policy, or party."

Concurring & Dissents Next Posts -

See # 2- Trump v. U.S - Concurring Opinions

See # 3 Trump v. U.S. - Dissenting Opinions - It's Over

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