SUMMARY
In 2024, the USSC decision in Trump v. US granted American presidents two kinds of immunity for crimes they commit while in office. One was absolute immunity for crimes committed in connection with a president's exercise of core duties, the scope of which is moderately well defined. The other is presumptive immunity for other official duties, the scope of which is intentionally highly ambiguous. There is no immunity for acts that are purely unofficial, the scope of which is moderately ambiguous.
The evidence prosecutors need to overcome the presumption of immunity is so high and difficult to meet that it can reasonably be seen as very close to absolute immunity. Presumptive immunity bars prosecutors from proving criminal intent for crimes under presumptive immunity. Since proof of criminal intent beyond a reasonable doubt is necessary for proof of criminal culpability, presumptive immunity is very close to absolute immunity.
TRUMP V US
The USSC granted Trump (and all other presidents) a broad shield of immunity in its 2024 decision in Trump v US. Presumptive immunity applies to official acts within "the outer perimeter of the President's official responsibilities" where authority is shared with Congress. Here, the government bears the burden of rebutting the presumption by showing that prosecution "would pose no 'dangers of intrusion on the authority and functions of the Executive Branch.'" That's not clear.
The burden placed on prosecutors to overcome presumptive immunity is extraordinarily high, and worse yet it is deliberately ambiguous. The government must establish that there is "no" danger "of intrusion on the authority and functions of the Executive Branch," with no other factors to consider or balance. Legal scholars note that this test is "a bastardization" of the balancing test from Nixon v. Fitzgerald (the civil immunity precedent), which originally required weighing "broad public interests," including "vindication of the public interest in an ongoing criminal prosecution."
Under presumptive immunity, courts cannot (1) inquire into the president's motives when determining whether conduct was official or unofficial, (2) deem an action unofficial merely because it allegedly violates a generally applicable law., and (3) cannot use evidence of official acts to prove criminal intent even for unofficial conduct.
The presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President's official behavior might be. In other words, presumptive immunity is so close to absolute immunity that there isn't a significant distinction between the two kinds of immunity.
The burden placed on prosecutors to overcome presumptive immunity is extraordinarily high, and worse yet it is deliberately ambiguous. The government must establish that there is "no" danger "of intrusion on the authority and functions of the Executive Branch," with no other factors to consider or balance. Legal scholars note that this test is "a bastardization" of the balancing test from Nixon v. Fitzgerald (the civil immunity precedent), which originally required weighing "broad public interests," including "vindication of the public interest in an ongoing criminal prosecution."
Under presumptive immunity, courts cannot (1) inquire into the president's motives when determining whether conduct was official or unofficial, (2) deem an action unofficial merely because it allegedly violates a generally applicable law., and (3) cannot use evidence of official acts to prove criminal intent even for unofficial conduct.
The presumption is that the criminal law does not apply to Presidents, no matter how obviously illegal, harmful, or unacceptable a President's official behavior might be. In other words, presumptive immunity is so close to absolute immunity that there isn't a significant distinction between the two kinds of immunity.
In her dissent, Justice Sotomayor wrote:
Today's decision to grant former Presidents criminal immunity reshapes the institution of the Presidency. It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.
Thus, as is generally the case with dictators, Trump is above the law at least as long as he is in office.
Q: If a Democrat is again elected president of the US, currently an uncertain prospect, would the threat to democracy and rule of law likely be as great as it now is in Trump's hands? In other words, how likely is the Democratic Party shift from its current nominally pro-democracy and pro-rule of law stance to the more authoritarian and anti-rule of law stance that dominates the current MAGA Republican Party?
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