Thoughts about presidential immunity

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 grant of immunity is vast: The Court granted absolute immunity for Trump's attempts to weaponize the DOJ to overturn the 2020 election—declaring that "Trump's threat to remove the Acting Attorney General also enjoyed absolute immunity." Even his pressure campaign on Vice President Pence to reject electoral votes received "at least" presumptive 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?

Nostalgia: A blast from my academic past

One in a while, I see echoes of what sprouted and grew from where I did my academic research (not my research per se). A NYT article (not paywalled) discusses a successful gene therapy treatment for ADA-SCID. That is a genetic  disease that leaves babies without a functioning immune system. Most of those babies die within a year of birth. 

The lab I did my dissertation research in was at the NIH, in the institute we called Giblets, the National Heart, Lung & Blood Institute. That lab worked a couple of other NIH labs that were developing gene therapy treatments for human genetic disease. The targeted disease was ADA-SCID. The first treatment procedure with human patients was done in 1990. 

I was in one of the key labs, but not directly involved in developing and administering the first human gene therapy protocol. I worked on peripheral research developing improved means to transfer genes into sick people. 

Cora Oakley, had ADA-SCID, 

but now she's cured

Here we are 35 years later and an apparently practical ADA-SCID gene therapy has finally arrived on the scene. 

Discussion about the first treatment protocol:

it was extremely complex, extremely expensive 

and not practical for widespread use

Progress is being made and gene therapy is becoming increasingly practical. Other targeted diseases include (1) sickle cell disease and β‑thalassemia, which is treated by stem‑cell gene addition and gene editing using CRISPR technology, and (2) hemophilia A and B, which is treated using virus (AAV)-based liver-directed gene therapy to increase blood clotting factor activity reduce or nearly eliminate spontaneous bleeding and the need for regular clotting factor infusions. 

There's still a long way to go, but gene therapy has gone a heck of a long way since 1990.

Regarding the end of the criminal prosecution of Trump

Prosecutors in Georgia dropped a criminal lawsuit against Trump claiming that it would be inconvenient. Specifically, prosecutors dropped the case because it allegedly would take years to litigate. The RICO criminal case against Trump was strong:

• Trump's team had fake electors forge and submit fraudulent documents to Congress and the National Archives dishonestly claiming to be the official Georgia results. This was straight up fraud.

• Kenneth Chesebro, a Trump lawyer, pleaded guilty to felony fraud for the fake elector scheme.

• Jenna Ellis, another Trump lawyer, pleaded guilty to felony perjury for making false statements about election fraud at a Georgia legislative hearing

• Sidney Powell and Scott Graham Hall, more Trump lawyers, pleaded guilty to tampering with voting machines in Georgia

• Trump didn't just tell Raffensperger to find 11,780 votes. He threatened to have Raffensperger prosecuted if he didn't find the votes. Raffensperger, who is a Republican and was a Trump supporter, has maintained that Trump was demanding that he illegally manufacture votes for Trump.

This lawsuit clearly was a viable RICO prosecution. The evidence of Trump crime is solid. If convicted, Trump probably could have easily gone to prison for a number of years.

Now Trump supporters are claiming that the prosecution was weaponized and bogus. That further erodes faith in both the rule of law and trust in government generally. For example, Fox News reports that Trump and allies describe the Georgia election case as a “witch hunt” and part of broader “lawfare” against him.

Once the statute of limitations for those crimes ends, apparently by January 2029, no further prosecution will be possible.

The core reason for the dismissal boils down to a purely subjective judgment by prosecutors. Did Trump, without explicitly stating it, instruct Georgia's Secretary of State to fictitiously or fraudulently produce enough votes to secure a victory in Georgia,” Or, did Trump genuinely believe that fraud had occurred, and was asking the Secretary of State to investigate to determine whether sufficient irregularities exist to change the election outcome. When multiple interpretations are equally plausible, the accused is entitled to the benefit of the doubt and should not be presumed to have acted criminally.

The ultimate question for whether the criminal prosecution against Trump should have been filed in the first place is simple: Are both interpretations equally plausible, or was Trump's track record sufficient to given him the benefit of a doubt about his own clearly false stolen election claims?

In his 2021 book, Integrity Counts, Georgia's Secretary of State, Brad Raffensperger, was unequivocal about his interpretation of Trump's phone call asking him to "find" 11,080 votes. Raffensperger wrote: "the president was asking me to do something that I knew was wrong, and I was not going to do that.”

Given Trump’s documented pattern of anti‑democratic conduct and the one‑sided benefits of this dismissal, it is reasonable to treat dismissing the prosecution as a partisan accommodation unless and until the people involved can clearly and convincingly show a nonpolitical justification that truly matches the gravity of the case. Whatever self‑described motives drove the decision to drop the prosecution here, the effect is indistinguishable from a partisan decision to shield a president from accountability for attempting to subvert a free and fair election.

Discussion

By the time the Georgia RICO indictment was filed in August 2023, the public evidentiary record that the 2020 election was not stolen was already massive, multi‑layered, and years old. In view of Trump's solid track record of chronic lying, coupled with the evidence of a free and fair 2020 election, did all the evidence warrant giving Trump the benefit of a doubt that he really believed the 2020 election was stolen?

Was dismissal of this criminal prosecution unwarranted, unjustifiable and completely partisan, or were there legitimate concerns that dictated dismissing a criminal case of such enormous gravity?

Has the rule of law been vindicated here, or subverted?

A damage assessment of MAGA authoritarianism

Context

Most experts on democracy and authoritarianism now consider America's liberal democracy to be under a major assault by MAGA authoritarianism. Last April, authoritarianism expert Steven Levitsky commented that the "US democracy will likely break down during the Second Trump administration in the sense that it will cease to meet standard criteria for a liberal democracy". He describes the current situation as America sliding into "competitive authoritarianism".

Another expert, Ruth Ben-Ghiat, framed Trump's second term as a new kind of coup that follows the classic authoritarian playbook. His demagoguery attacks institutions and foments irrational fear and anger to help him coax Americans into rejecting democracy:

He did a really good job of conditioning over and over. We've had eight years of this, Americans [learning] to see democracy as inferior to something else. That something else would be strongmen, rule by him.

The single most effective weapon that helped put MAGA authoritarianism in power is demagoguery. According to one expert assessment, the US is no longer a democracy. Instead, the US is ranked as an anocracy, meaning a regime that is neither fully democratic nor fully autocratic:

The USA is no longer considered a democracy and lies at the cusp of autocracy; it has experienced a Presidential Coup and an Adverse Regime Change event (8-point drop in its POLITY score).

Although Trump and allied MAGA elites and most of their rank and file supporters would strongly reject the assertion that they are authoritarian, or support authoritarianism, overwhelming evidence contradicts that. It is a false belief among the ignorant, but a lie among the elites.

A damage assessment

A simple, short assessment is impossible. MAGA damage is complex, multi-faceted, broad and deep. Three examples hint at the complexity and scope of MAGA's authoritarian damage.

1. In his first week in office in Jan. 2025, Trump fired 17 independent inspectors general (IGs) in a single night. IGs are watchdogs Congress created after Watergate to root out waste, fraud, and abuse in federal agencies. A federal judge ruled this violated federal law requiring 30-day notice to Congress, but the firings stood. A Senate investigation found these IGs had collectively identified billions in fraud and saved taxpayers enormous sums. By gutting oversight, Trump signaled that accountability is optional, which normalized corruption. Loyalty to him matters more than protecting the public interest or honest governance.

That the firings stood reflects the weakness in the rule of law that MAGA has created since Trump came of the scene in 2017.

2. Trump has openly politicized and weaponized the Justice Department by selecting Pam Bondi as attorney general. She is personally loyal to Trump, not the rule of law. Trump ordered her to prosecute his personal and political enemies. Trump loyalists carry out those orders. In 2025 Trump publicly urged Attorney General Pam Bondi to investigate James Comey, Adam Schiff, and Letitia James, calling them “guilty” and demanding immediate action. The then DOJ brought weak, retaliatory indictments against them that judges later rejected as improper.

Comparing authoritarian abuses of power by Nixon and Trump indicates that Trump's abuses are qualitatively and quantitatively worse and more threatening to democracy.

3. Trump made systematic lying a political strategy. During his first term in office, he made over 30,000 false or misleading statements. That tactic has not changed since then. His relentless attacks on "fake news" and claims of a "stolen" 2020 election, which have been rejected by every court that heard them, led at one time to about 70% of Republicans to falsely believe that Biden's victory was illegitimate. That false belief directly led to Trump's 1/6 coup attempt. In addition, he sued media companies into settlements, and threatened to revoke broadcast licenses of networks he dislikes. His constant attacks on truth and press freedom corrodes the faith in truth that democracy needs to function.

Overall, MAGA has damaged American democracy using various avenues of attack. Collectively, MAGA tactics have eroded the rule of law, seriously damaged public trust in inconvenient facts and public interest-serving institutions, and pushed the United States away from liberal democracy toward a corrupt authoritarianism.

Discussion

Is the damage asserted here as real and serious as it is asserted to be? If not, why? What is the counter evidence sufficient to mostly or completely negate the damage assessment?