The Supreme Court has some explaining to do in Trump v. United States

The U.S. Supreme Court has precedents going back to 1792 against issuing advisory opinions to help us interpret its decisions. However, the Roberts court has shown no obligation to precedent. It should break this one to explain its ruling on presidential immunity in Trump v. United States. 

As it stands, the ruling causes enormous confusion over the nation’s most fundamental laws and principles, with little guidance on how courts and juries should apply it. Now, if an ex-president breaks the law while in office, they must decide on a case-by-case basis whether he or she is immune to prosecution. 

The decision raises enough questions to occupy lawyers, scholars, the judiciary, presidential ethics experts and the Supreme Court itself for years to come. It will fill the high court’s docket with appeals. The best outcome would be for a future court to reverse it. But in the meantime, the current justices owe us a more detailed explanation of their ruling and much better guidance on how they expect it to be applied. 

Writing for the majority, Chief Justice John Roberts described three categories of presidential actions: those clearly within the president’s official constitutional and statutory duties; those on the “outer perimeter” of those duties; and those that are private acts. Presidents have absolute immunity in the first category, qualified immunity in the second, and no immunity in the third. 

Roberts acknowledged that this “raises multiple unprecedented and momentous questions about the powers of the president and the limits of his authority under the Constitution,” and that “Distinguishing the president’s official actions from his unofficial ones can be difficult.” For guidance, he offered two principles, both questionable. 

First, “courts may not inquire into the president’s motives” because that would be “highly intrusive.” Yet motives have everything to do with whether a president’s acts are personal or official. Stripped of motive, Donald Trump’s speech to supporters on Jan. 6, 2021, was simply a president using his bully pulpit. But if his motive was to incite an insurrection and prevent the constitutional transfer of power, that would seem a private act for personal gain. 

Roberts’s second principle is that courts can’t rule that an action was unofficial merely because it violated a law. In other words, presidents can escape prosecution for lawbreaking simply by arguing that the potential infraction was an official act, which Roberts acknowledges is difficult to determine.

The court has ample reason here to break its tradition against advisory opinions. Candidate Trump, the far-right’s instructions to him through Project 25, and MAGA members of Congress describe a wide variety of actions Trump should take if he wins back the White House. Many would violate presidential norms or appear to violate federal laws or the Constitution. 

It would be most useful to lower courts — and preemptive for future presidents — if the Supreme Court were to go down the list of these threats and suggest whether a president could be immune from prosecution for each. 

For example: Can a president violate the constitutional rights of his adversaries or ordinary citizens whose views he doesn’t like? The Constitution guarantees the rights of speech and assembly. Trump’s aides have urged him to invoke the Insurrection Act and deploy the military against demonstrators. During a June 1, 2020, talk on law and order, Trump said he was an “ally of all peaceful protesters. Minutes later, Washington D.C. police used tear gas as Park Police and the Secret Service needlessly broke up a peaceful protest of citizens exercising their rights of speech and assembly at Washington’s Lafayette Park. If this occurred to facilitate a Trump photo-op, as some asserted at the time, would this deprivation of First Amendment rights have been an official act deserving immunity?

Ordinary citizens can be prosecuted for unprotected speech in which they slander other people to ruin their reputations, incite violence, or level “true threats” against opponents. If Trump were president, would he be immune from liability for using his bully pulpit for that kind of speech? Trump’s conviction for defaming E. Jean Carroll suggests not. 

Trump threatens to use the Justice Department to prosecute his enemies. However, a previous Supreme Court ruled in 1994 that the Fourth Amendment prohibits malicious prosecution. Can a president order it anyway? Can he be held accountable if he does? 

When the U.S. is a formal party to an international treaty, its commitments have the force of domestic law. Can a president violate or ignore those commitments with impunity? 

Can a president order the U.S. military to commit war crimes or crimes against humanity? 

Trump proposes to impound federal funds appropriated by Congress, as when he tried to coerce the president of Ukraine to dig up dirt on Joe Biden. Do presidents have the authority to violate the separation of powers? 

In 2022, referring to his false claim that the 2020 election was fraudulent, Trump wrote on Truth Social, “A Massive Fraud of this type and magnitude allows for the termination of all rules, regulations, and articles, even those found in the Constitution.” Does a president have that power? 

The immunity ruling could come back to bite the conservatives and MAGA groups who are praising it. Could a future president who wanted to prevent more mass shootings order the confiscation of all privately owned firearms? After all, presidents are obligated by the Constitution to “make sure that the laws are faithfully executed.”

The Roberts court has produced several rulings that are stiff competition, but Trump v. United States will likely go down in history as the most dangerous and ill-considered ever issued by a U.S. Supreme Court.

An advisory opinion won’t redeem it, but maybe the ruling would look less like a license for future presidents to impose tyranny upon our constitutional democracy. 

William S. Becker is a former regional director at the U.S. Department of Energy and author of several books on climate change and national disaster policies, including the “100-Day Action Plan to Save the Planet,” and “The Creeks Will Rise: People Co-Existing with Floods.”