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

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 of proof is asymmetric. The prosecution must prove a negative—that there is no danger to executive functions—while the president need only assert that conduct was "official." Proving a negative is almost always somewhere between very hard and impossible.

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 truly above the law at least as long as he is in office. 

Discussion

In his opinion, Roberts' justification asserted that "the danger that a President will be constantly looking over his shoulder when making critical decisions is very real, perhaps more than ever in an age of extreme political antagonism and polarization." In addition, he argued that the court “cannot afford to fixate exclusively, or even primarily, on present exigencies,” but was required to consider the decision’s “profound consequences for the separation of powers and for the future of our Republic.”

Machiavelli and later political thinkers have pointed out that by its nature, executive power has a problematic relationship with strict legality. But does that legitimate concern over "strict legality" necessitate and justify the essentially completely non-existent relationship with legality that Trump v US asserts? Strict legality has never been the standard for assessing the actions of a US president.

Is the following moral reasoning sound and persuasive or neither?

A president invested with vast power and public trust should be held to at least as high a standard of legal liability as ordinary citizens, if not a meaningfully higher one. In a democracy, public office is a fiduciary and public trust relationship. Elected officials hold power solely for the benefit of the public and democratic institutions including the the rule of law. That necessarily creates obligations of care, loyalty, and accountability that far exceed those governing private conduct.

Does it matter that in the past the US continued to function without this vast grant of immunity for a president? Is the immunity grant evidence of authoritarianism and support for a unitary executive with power very close to dictator-level power? Is the real danger not that presidents will "look over their shoulder" when considering lawful actions, but instead it is that presidents will act without restraint when freed from accountability? Does Roberts conflate unwarranted political attacks with legitimate prosecution?