Can the president be officially criminal?

The distinction between a “private” and an “official” act elaborated by the Supreme Court’s conservative majority in Trump v. United States is a distinction without difference or significance. The court provided no definition of official and no definition of private. It left the lower courts, as well as the American people, flabbergasted as to whether and when the president has immunity from criminal prosecution. As a result, the high court did serious violence to the rule of law.

The court had to say that no one is above the law; it has become the watchword of our faith in government and in ourselves. Many of the justices had told the Senate as much under oath at the time of their respective confirmations.

The conservative majority, however, wanted to give Trump broad immunity. This was a legislative, not a judicial judgment. But how to do it without declaring that he is a person above the law?

However you slice it, what they did say is that Donald Trump is above the law with no elaboration as to why. For the textualists, the word immunity appears nowhere in the Constitution. Nor do the words “official act” or “private act.” The Framers knew how to confer immunity if they wanted to — the “Speech and Debate” clause confers it upon congressmen in certain cases. Immunity for the president is conspicuously absent.

At the time of the founding, a number of state governors had immunity under their states' respective constitutions, but the Founders chose not to go this route for the president. George III was a king who by unwritten law “could do no wrong.” To the founders, this was abhorrent. They created a separation of powers, which for more than two centuries has guarded our government from autocracy, and a rule of law that has protected us from tyrannical power.

But the purported distinction between private and official criminal acts of the president is so unsusceptible to judicial exposition that it will certainly be overruled as soon as we have a Supreme Court that ceases to hang the Constitution upside down.

Suppose, for example, that the president decides to murder his wife’s lover, surely a private act. But, if he orders military personnel to do it, suddenly it is an official act, as to which he is presumed to be immune. And, to add to the theater of the absurd, if he decides to murder a political opponent or a critical journalist or a disloyal congresswoman, a political act may be transformed into an official act, whether he uses the military or does it himself.

Suppose Trump decided to have one of his bodyguards vandalize the home of Stormy Daniels, surely a private act. But if he is protesting what he falsely calls a rigged election, and he provokes a mob to vandalize the Capitol, that might be an official act.

Suppose Trump accepted a million-dollar bribe to pardon one of his cronies. The authority to pardon is a core power of the president bestowed by the Constitution. According to Chief Justice John Roberts, who relegated to a footnote a new rule that left lawyers scratching their heads, the prosecutor could prove the bribe and the fact of the pardon. But, what the prosecutor could not prove through documents and testimony, for instance that of the pardon attorney, is that there was no proper basis for the pardon. The case would rest on a “one-legged stool” as the Chief Justice expressed it, since the proof would create an “intrusion on the authority and functions of the executive branch.” Justice Amy Coney Barrett was worried that this judge-made rule would “hamstring” the prosecution. And indeed it would.

One could readily think of many more hypothetical examples in a world where the court has failed to provide parameters. Trump’s attorney conceded on oral argument that when Trump turned to a private attorney to help him spread claims of election fraud to “spearhead his challenges to the election results,” that would sound private. So would a false verification signed by Trump to support a challenge or a plan to submit fraudulent slates of electors to obstruct the certification proceeding. But the court’s opinion would not rule out immunity in such circumstances.

At oral argument, the court seemed more interested in hypotheticals involving future presidents who possibly might commit crimes with no suspicion of venality, such as a drone attack that killed American citizens abroad.

If an officer of the federal government (or indeed anyone else) commits a criminal act, he can be prosecuted without regard to whether it was a private or an official act. Under the court’s ruling, only the president is immune, unless the act is determined to be private.

Why this special rule for a president? Unlike most people, the president is cloaked with a bodyguard of lawyers to advise him before he acts. If he acts criminally, why give him immunity? Why not hold him accountable?

If the president sexually assaults a journalist in a department store dressing room, it may be a private act, but it is a private act that only injures one person. If, however, he directs the military to stage a coup because he doesn’t feel like leaving office, we are all affected. So why give him a pass?

What the majority failed to appreciate is that the danger to the republic is not a president pulling his punches out of fear of eventual criminal prosecution, but a president spurred to commit serious crimes because he is confident he will never be prosecuted.

I agree with the sizzling dissent of Justice Ketanji Brown Jackson: “The official-versus-unofficial act distinction also seems both arbitrary and irrational, for it suggests that the unofficial criminal acts of a president are the only ones worthy of prosecution. Quite to the contrary, it is when the president commits crimes using his unparalleled official powers that the risks of abuse and autocracy will be most dire.”

James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.