Public or private? Understanding the Supreme Court’s partial immunity ruling for Donald Trump

Digital Originals

The Supreme Court is seen Monday, July 1, 2024, in Washington. (AP Photo/Mariam Zuhaib)

The U.S. Supreme Court ruled 6-3 on July 1 that former U.S. President Donald Trump cannot face prosecution for actions he made under the constitutional powers of the presidency.

But the court also found that Trump could face prosecution for actions he made in a private unofficial capacity that were not part of his presidential reach.

“The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts,” the majority opinion of the court reads.

The ruling, which marks the first time in U.S. history the court recognized any form of executive immunity, means that the government’s hopes of a criminal trial before the Nov. 5 presidential election are dashed while a lower court in Washington D.C. re-considers the issue.

The Supreme Court has tasked the lower court to determine what acts Trump made in his efforts to overturn the 2020 election results were official, and which were unofficial.

In her dissenting opinion Justice Sonia Sotomayor said that the majority opinion grants former presidents criminal immunity and reshapes the presidency.

“It makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law. Relying on little more than its own misguided wisdom about the need for ‘bold and unhesitating action’ by the President… the Court gives former President Trump all the immunity he asked for and more,” Sotomayor wrote.

“The majority today endorses an expansive vision of Presidential immunity that was never recognized by the Founders, any sitting President, the Executive Branch, or even President Trump’s lawyers, until now.”

In its majority opinion, authored by Chief Justice John Roberts, the Supreme Court offered guidance to the lower court on how they might determine official from unofficial.


The lower court cannot look to motive as a factor in deciding if Trump’s actions were official or unofficial.

“Such a “highly intrusive” inquiry would risk exposing even the most obvious instances of official conduct to judicial examination on the mere allegation of improper purpose,” the majority opinion states.

In her dissent, Justice Sotomayor writes: “It is one thing to say that motive is irrelevant to questions regarding the scope of civil liability, but it is quite another to make it irrelevant to questions regarding criminal liability. Under that rule, any use of official power for any purpose, even the most corrupt purpose indicated by objective evidence of the most corrupt motives and intent, remains official and immune.”

The lower court cannot deem an act unofficial just because “it violates generally applicable law”.

“Otherwise, Presidents would be subject to trial on ‘every allegation that an action was unlawful,’ depriving immunity of its intended effect,” the majority opinion states.

Trump’s discussions with the Acting Attorney General are considered part of the president’s official duties, the opinion says.

Roberts writes that the indictment against Trump does not dispute that Trump was acting as part of his official powers when he attempted to use Justice Department to convince some states to replace their legitimate electors with fraudulent slates of electors.

“The allegations in fact plainly implicate Trump’s ‘conclusive and preclusive’ authority. The Executive Branch has ‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute, including with respect to allegations of election crime,” the majority opinion states.

Regardless of what he asked, Trump had exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials, the majority opinion states.

“Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials,” the majority opinion reads.

However Trump’s discussions with the Vice President, state officials and other private parties and his statements made in public are not as clear.

“Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct,” the opinion reads, adding that Trump is at least “presumptively immune from prosecution” from discussions with the Vice President, even if it was an attempt to pressure him to take acts associated with his role in certifying the election.

“It is the Government’s burden to rebut the presumption of immunity,” the Supreme Court majority opinion reads.

The Supreme Court instructed the District Court to assess “whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

Trump argues that his discussions with people outside of the Executive Branch including state officials, private parties, and the general public, were done in an official capacity. Meanwhile the government argues that Trump can point to no plausible source of authority enabling the President to take such actions.

“Determining whose characterization may be correct, and with respect to which conduct, requires a fact-specific analysis of the indictment’s extensive and interrelated allegations,” the majority opinion reads.

In regards to Trump’s communications on Jan. 6 in the form of Tweets and a public address, the Supreme Court opinion states that the president has “extraordinary power to speak to his fellow citizens and on their behalf.”

The ruling says that such communications “are likely to fall comfortably within the outer perimeter of his official responsibilities.”
However the ruling also said that there may be contexts where the President speaks in an unofficial capacity, such as as a candidate for office or party leader.

“Whether the communications alleged in the indictment involve official conduct may depend on the content and context of each. This necessarily factbound analysis is best performed initially by the District Court,” the majority opinion reads.