How the Majority of the Supreme Court Recognizes Absolute Immunity

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Separate from its official-acts immunity, the majority recognizes absolute immunity for “conduct within [the President’s] exclusive sphere of constitutional authority.” Ante, at 9. Feel free to skip over those pages of the majority’s opinion. With broad official-acts immunity covering the field, this ostensibly narrower immunity serves little purpose.

In any event, this case simply does not turn on conduct within the President’s “exclusive sphere of constitutional authority,” and the majority’s attempt to apply a core immunity of its own making expands the concept of “core constitutional powers,” ante, at 6, beyond any recognizable bounds.

The idea of a narrow core immunity might have some intuitive appeal, in a case that actually presented the issue. If the President’s power is “conclusive and preclusive” on a given subject, then Congress should not be able to “ac[t] upon the subject.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 638 (1952) (Jackson, J., concurring).

In his Youngstown concurrence, Justice Robert Jackson posited that the President’s “power of removal in executive agencies” seemed to fall within this narrow category. Ibid., n. 4. Other decisions of this Court indicate that the pardon power also falls in this category, see United States v. Klein, 13 Wall. 128, 147 (1872) (“To the executive alone is in trusted the power of pardon; and it is granted without limit”), as does the power to recognize foreign countries, see Zivotofsky v. Kerry, 576 U. S. 1, 32 (2015) (holding that the President has “exclusive power . . . to control recognition determinations”).

In this case, however, the question whether a former President enjoys a narrow immunity for the “exercise of his core constitutional powers,” ante, at 6, has never been at issue, and for good reason: Trump was not criminally indicted for taking actions that the Constitution places in the unassailable core of Executive power. He was not charged, for example, with illegally wielding the Presidency’s pardon power or veto power or appointment power or even removal power.

Instead, Trump was charged with a conspiracy to commit fraud to subvert the Presidential election. It is true that the detailed indictment in this case alleges that Trump threatened to remove an Acting Attorney General who would not carry out his scheme. See, e.g., App. 216–217, Indictment ¶¶74, 77.

Yet it is equally clear that the Government does not seek to “impose criminal liability on the [P]resident for exercising or talking about exercising the appointment and removal power.” Tr. of Oral Arg. 127. If that were the majority’s concern, it could simply have said that the Government cannot charge a President’s threatened use of the removal power as an overt act in the conspiracy. It says much more.

The core immunity that the majority creates will insulate a considerably larger sphere of conduct than the narrow core of “conclusive and preclusive” powers that the Court previously has recognized. The first indication comes when the majority includes the President’s broad duty to “‘take Care that the Laws be faithfully executed’” among the core functions for which a former President supposedly enjoys absolute immunity. Ante, at 20 (quoting Art. II, §3). That expansive view of core power will effectively insulate all sorts of noncore conduct from criminal prosecution.

Were there any question, consider how the majority applies its newly minted core immunity to the allegations in this case. It concludes that “Trump is . . . absolutely immune from prosecution for” any “conduct involving his discussions with Justice Department officials.” Ante, at 21. That conception of core immunity expands the “conclusive and preclusive” category beyond recognition, foreclosing the possibility of prosecution for broad swaths of conduct.

Under that view of core powers, even fabricating evidence and insisting the Department use it in a criminal case could be covered. The majority’s conception of “core” immunity sweeps far more broadly than its logic, borrowed from Youngstown, should allow.

The majority tries to assuage any concerns about its made-up core immunity by suggesting that the Government agrees with it. See ante, at 34. That suggestion will surprise the Government. To say, as the Government did, that a “small core of exclusive official acts” such as “the pardon power, the power to recognize foreign nations, the power to veto legislation, [and] the power to make appointments” cannot be regulated by Congress, see Tr. of Oral Arg. 85– 87, does not suggest that the Government agrees with immunizing any and all conduct conceivably related to the majority’s broad array of supposedly “core” powers.

The Government in fact advised this Court to “leav[e] potentially more difficult questions” about the scope of any immunity “that might arise on different facts for decision if they are ever presented.” Brief for United States 45. That would have made sense. The indictment here does not pose any threat of impermissibly criminalizing acts within the President’s “conclusive and preclusive” authority.

Perhaps for this reason, even Trump discouraged consideration of “a narrower scope of immunity,” claiming that such an immunity “would be nearly impossible to fashion, and would certainly involve impractical line-drawing problems in every application.” Brief for Petitioner 43–44.

When forced to wade into thorny separation-of-powers disputes, this Court’s usual practice is to “confine the opinion only to the very questions necessary to decision of the case.” Dames & Moore v. Regan, 453 U. S. 654, 661 (1981). There is plenty of peril and little value in crafting a core immunity doctrine that Trump did not seek and that rightly has no application to this case.