The Supreme Court by a 6-3 vote has decided that the President of the United States enjoys absolute immunity for some criminal conduct, presumptive immunity for other criminal conduct and, for an indeterminate array of other criminal conduct, very difficult to identify, no immunity. However, the decision does not address the real question that was before the Court. Instead, it sends the case back to the lower courts for further consideration which will, of course, prevent the trial of any elements of the pending indictment before the November election and will likely lead to years of further litigation. If Trump wins the 2024 election, that litigation will undoubtedly include the question whether a President can pardon himself so that he can never be prosecuted for crimes committed while in office.

And, of course, if Trump loses and instigates another insurrection like January 6, 2021, designed to overturn the election result, there will be years more of litigation to address the extent of the crimes he would be committing as the Supreme Court continues to equivocate about basic constitutional principles. Meanwhile, Trump will have pardoned the loons who executed his direction to stop the certification of Biden’s win in 2020 by attacking the Capitol. The Court may well regret the perfidy of its craven decision to immunize the presidency from the consequences of blatantly criminal behavior.

I will leave to others the detailed parsing of the opinions in the case, with a few exceptions.

I would have thought, and did think, that the question before the Court was straightforward, especially following the oral argument in which Trump’s counsel claimed that the President could order the murder of a political opponent with complete immunity from prosecution.

This was, after all, a criminal prosecution that led to a very detailed indictment containing 130 numbered paragraphs recounting the events leading up to, through, and after January 6. The immunity issues needing elucidation were apparent from the indictment. There was no need for further lower court proceedings to determine what the central issues were. And absent motive to kick the can down the electoral road and prevent the trial of Donald Trump before the election, there is no apparent reason the Supreme Court could not have decided which acts alleged were immune, why they were immune and the result of that immunity for the prosecution of the indictment through trial.

The conduct alleged to have constituted crimes was described in extreme detail. If that conduct, as described, was immune from criminal prosecution, it is not apparent why the Supreme Court could not have decided and explained without having further time-consuming proceedings in the lower courts and the inevitable appeals back to the Supreme Court in, perhaps, 2026 or even 2027.

Perhaps the clearest example is the conclusion that the President’s “discussions” with the Department of Justice and threats to replace DOJ personnel for not complying with the President’s “discussion” (that was in fact not merely discussion but “demands” to engage in blatantly untrue and unlawful efforts to overturn the 2020 election) are unreachable by criminal prosecution. This must be understood in connection with the prior finding that in the realm of executive powers, the President’s motives may not be questioned. Thus, the Court concludes:

Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts.

In short, according to the Supreme Court, a President may for entirely corrupt purposes, as was alleged here, threaten and remove personnel who refuse to comply with his directives to violate the law, without being accountable for his actions.

… the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the al­leged conduct involving his discussions with Justice De­partment officials.

Similarly, while purporting to need lower court input on some questions, the Court categorically rules out prosecution of Trump for trying to pressure Vice President Pence to violate his constitutional duties in connection with certification of the election result. The rationale for this astonishing outcome does not support it, but the Court is blind to the implications of its ruling:

It is thus important for the President to discuss official matters with the Vice President to ensure continuity within the Executive Branch and to advance the President’s agenda in Congress and beyond.

The Court is indifferent to the consideration that the President’s agenda might be, as it clearly was in this case, to undermine the electoral process, void the votes of millions of Americans, and install the defeated candidate as the winner of the election.

Whenever the President and Vice President discuss their official responsibilities, they engage in official conduct.

The Court’s view is that Trump’s demands were “just talk.” After reciting a list of irrelevant matters in which the coordination of the President and Vice President are required, the Court simply writes off the allegation that the President, for entirely other and blatantly corrupt reasons, was pressuring the Vice President to violate the Constitution.

The indictment’s allegations that Trump attempted to pressure the Vice President to take particular acts in connection with his role at the certification proceeding thus involve official conduct, and Trump is at least presumptively immune from prosecution for such conduct.

 In simple English, under the Court’s decision, the President is free to demand his Number Two federal officer to violate the Constitution without little concern for being held criminally responsible. The rationale for this bizarre outcome is that the “President may need to rely on the Vice President in his capacity as President of the Senate to advance the President’s agenda in Congress.” Thus,

It is ultimately the Government’s burden to rebut the presumption of immunity. We therefore remand to the District Court to assess in the first instance, with appropriate input from the parties, whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding in his capacity as President of the Senate would pose any dangers of intrusion on the authority and functions of the Executive Branch.

 It was and is plain on the face of the indictment that the charges related to Trump’s attempt to pressure the Vice President into violating what virtually every credible legal authority understands is the limit on the VP’s authority have nothing whatever to do with the President’s “agenda in Congress.” The corruption of the majority opinion in this respect is blatantly obvious as a partisan gift to Trump to create yet another obstacle to his being timely tried for a clear and obvious crime.

Regarding the allegations of Trump’s attempts to interfere with state electoral slates, the Court finds the issues just too complicated for it to address:

The necessary analysis is … fact specific, requiring assessment of numerous alleged interactions with a wide variety of state officials and private persons.

The Court remands those issues for further fact finding as well. Why these questions could not be resolved at trial through evidence, which is the normal practice, is not apparent. The indictment’s allegations are very specific and precise about what Trump attempted to do in Georgia, for example. There is no plausible basis for concluding that Trump’s demands that the Secretary of State for George “find” just enough votes to give him Georgia’s electoral votes were merely policy discussions. Trump could argue that in the trial, of course, as a “defense,” but to hold that more fact finding at the District Court level is essential to even holding a trial is beyond the pale.

If the trial court made material mistakes in admitting evidence and instructing the jury, those issues could be addressed through appeals in the normal course. The Court’s remand games the normal judicial process for Trump to aid his effort to prevent any trial before the election.

Finally, and perhaps most remarkably, the Court finds that the indictment’s charges related to Trump’s incitement speech on January 6 requires remand as well:

Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each…. We therefore remand to the District Court to determine in the first instance whether this alleged conduct is official or unofficial.

In these conclusions the Supreme Court pretends it knows nothing about, and ignores the specific allegations of the indictment, what Trump actually said on January 6., 2021.

The Court then indicates that evidence of the President’s knowledge of the falsity of his election fraud claims is not admissible at trial. It thus completes the gaming of its decision to protect the President from allegations of blatantly criminal conduct that has nothing whatever to do with the official duties of the President and belies entirely his obligation to “take Care that the Laws be faithfully executed.” The Court’s decision cannot be squared with the President’s responsibility to the Constitution and the law. It is a travesty of the most serious kind that the country will long regret. The Court has opened the door to a repeat of January 6, 2021 ignoring, among other things, that this time the government will be prepared for the attack.

More to come.