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In the recent US Supreme Court ruling on presidential immunity, Trump v. United States, the Court found that there is absolute immunity for actions within the president's "exclusive sphere", and presumptive immunity for official acts outside of that sphere. To defeat a claim of presumptive immunity, a prosecutor must show that "applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the executive branch’".

This apparently requires the prosecutor to prove a rather strong negative; that there is no danger, not even a small or far-fetched danger. Has the Court proposed any examples in which a certain set of facts would be sufficient to meet this standard for overcoming a claim of presumptive immunity?

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  • The layman explanation I took away was basically "criminal prohibition can't prevent the executive branch from functioning", which... makes sense? So, for example, you can't criminalize the president murdering the president of a country Congress has declared war on, because once we're at war, he has the authority to wage it. But (contrary to the other justices) it seems to me that you can criminalize the president killing his political rival, because that wouldn't get in the way of his ability to (no pun intended) execute the duties of his office.
    – user541686
    Commented 2 days ago
  • @user541686 See this other Q&A.
    – kaya3
    Commented 2 days ago
  • I'll leave a comment there; I don't think the logic follows.
    – user541686
    Commented 2 days ago
  • @user541686 Core powers delimited in the constitution of the president, such as commanding the military, are absolutely immune from scrutiny and criminal liability. The legality or motivation of the orders has no bearing on the immunity by this ruling. So no, you cannot criminalize the president killing his political rival by ordering a member of the military to kill them under this ruling. It is very, very clear on this subject.
    – Yakk
    Commented 2 days ago
  • @Yakk: The motivation does have a bearing, as far as I can see. There's a different example in the same ruling where it does: "Presiding over the January 6 certification [...] is a constitutional and statutory duty of the Vice President" too, but despite that, the opinion actually looks at the goal of that duty, and says "presiding over the Senate is not an 'executive branch' function", and thus avoids making it immune for vote counting. Assassinating your political opponent isn't an executive branch function either, so naturally it wouldn't be immune, even if he uses the army to do it.
    – user541686
    Commented 2 days ago

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No.

The closest it comes to doing so begins on page 23 of the Court's ruling, where the majority writes (emphasis added):

When the Vice President presides over the January 6 certification proceeding, he does so in his capacity as President of the Senate. Ibid. Despite the Vice President’s expansive role of advising and assisting the President within the Executive Branch, the Vice President’s Article I responsibility of “presiding over the Senate” is “not an ‘executive branch’ function.” [...] With respect to the certification proceeding in particular, Congress has legislated extensively to define the Vice President’s role in the counting of the electoral votes, see, e.g., 3 U.S.C. §15, and the President plays no direct constitutional or statutory role in that process. So the Government may argue that consideration of the President’s communications with the Vice President concerning the certification proceeding does not pose “dangers of intrusion on the authority and functions of the Executive Branch.”

The example provided is of communication between the President and Vice President regarding the latter's role in certifying the results of the presidential election. The majority says that since the President has no constitutional role in that certification, such discussions are arguably fair game for prosecutors. However, the court doesn't definitively propose any particular set of facts which would be sufficient for the government to establish that and for the Court to agree.

I did not find any other examples in the majority's opinion of what circumstances might be sufficient to overcome a claim of presumptive immunity.

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