All of you will of course have read or heard by now that the Supreme Court, has by a 6-3 majority, recently distinguished two sorts of "official acts" a U.S. President may engage in: those that are explicitly reserved for our nation's chief executive by language within the Constitution (or is at least implied by this Court's extremely robust theory of the separation of powers), and those that are not dispositively out of prosecutorial range, but are nevertheless related somehow to the President's explicitly enumerated Constitutional responsibilities--even if only peripherally.
What has been frequently written, broadcast and posted about what the Court said about this division of Presidential activities is that the first group must have "absolute immunity" from prosecution, while the second group is afforded only a presumption of immunity, one that may be rebutted by prosecutors at trial.
That isn't quite right, though.
Here's what the Roberts decision actually says about this matter:
"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."
"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."
"[W]e 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."
"At a minimum, the President must...be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch."
"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."
As you see, no fewer than five times did the Court quite clearly indicate that there is at least or at a minimum a rebuttable presumption of immunity for any ex-President who is accused of violating a criminal law for any even marginally "official" act taken while President. It thus seems to me quite obvious that the Roberts Court has given an unmistakable warning that (assuming Trump does not win the election and make this whole business go away forever) if a lower court were to hold that a presumption of Trump's immunity from prosecution were effectively rebutted by the prosecution in the case of his attempted coup or fraudulent elector scheme, it would be perfectly consistent for SCOTUS subsequently to decide on appeal that having a rebuttable presumption of immunity just turns out to be insufficient to afford certain Presidents who may want to take bribes or effect coups or overturn elections the certainty of stress-free retirements. For, as they repeatedly told us, we don't want our Presidents to be afraid to be bold!
So, contrary to a lot of reports about this decision, Roberts and his colleagues have made it crystal clear that granting Trump something better than a mere rebuttable presumption of immunity is precisely what we should expect in the unlikely event that this case somehow continues to survive its long swirl around the drain for another trip to the immense heights of the Supreme Court of the United States, our absolute guarantors of equal justice for all.
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