Official Criminal Act?
That Venn diagram doesn't work
Responding to
in his comments on the recent presidential immunity case, at the end of this post:I agree this is a radical court -- or rather, the cases it's judging are radical because they are totally unprecedented, brought on by an unprecedented, radical former president and by an unprecedented, radical opposition to him.
Here's the interesting thing to my non-expert mind. I read the CRS's (Congressional Research Service's) report on presidential immunity (link below). It's dated prior to this decision being handed down but clearly lays out the issues and precedents.
The distinction between official acts (either "core" or to the “outer perimeter") vs non-official acts is only used for civil cases. A sitting president or even a former president (although immunity can "erode over time") is immune from having a civil case brought against him for official acts based on two rationales: distraction or "chilled decision-making." Non-official acts can totally be civilly prosecuted. Trying to think of an example here… Presumably a president shouldn't have to worry about possibly inflicting some sort of inadvertent harm or wrong, collateral damages say, when making a tough decision in an official capacity.1
Criminal cases, however, are completely different. They also cannot be brought against a sitting president, but they surely can be brought against a former president as soon as he is out of office -- and getting him out of office can (and should!) happen sooner rather than later through impeachment and conviction. And yet, apart from removing him from office (faster!), an impeachment with or without conviction, i.e. acquittal, doesn't matter a wit to the possibility of eventual criminal prosecution, because impeachment is a political process, whereas criminal prosecution is not. Nobody is above the law — even though, due to the extraordinary nature of his unique position, the President of the United States is not “an ordinary individual.”
Given this difference between civil and criminal cases, what's completely wacky to me is the stated issue in this case: “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” (my emphasis) That should be nonsensical. A question of immunity should never even come up, because an official act should never be liable to criminal prosecution in the first place. How can we have an official, criminal act in our system?! If there is such, allegedly, if it really is an official act, made official by the Constitution no less, whatever law would make it criminal has got to be unconstitutional. That Venn diagram cannot overlap.
So it really does come down to whether the act in question was official under the Constitution, and this is a matter of fact, not legal principle. Or, rather, maybe it is a separate matter of legal principle and constitutional law: that is, what acts exactly are official under the Constitution? If that’s unclear, figure it out, then ascertain the facts of the case. Only an unofficial act could possibly be criminally prosecuted. It seems to me the Supreme Court punted on the most essential thing and raised a red herring. I cannot see how immunity should even come into it.
Constructive comments re: the legal principles of this case will be appreciated.
References
Very helpful breakdown of the issues and precedents by CRS: Presidential Immunity, Criminal Liability, and the Impeachment Judgment Clause (PDF)
SCOTUS blog write-up: https://www.scotusblog.com/2024/07/justices-rule-trump-has-some-immunity-from-prosecution/
The full decision: https://supreme.justia.com/cases/federal/us/603/23-939/
It seems civil cases are brought in private cases, where some harm or wrong is experienced. I can’t imagine how a president acting in an official capacity is doing something private. But apparently there is some circumstance here that applies.