© Farhad Sethna, Attorney, 2025;  All rights reserved

“Rex non potest iniuriam facere” – Latin for “The King can do no wrong” (according to Google!)

In this case, not the king, but the man who would be king – the President of the United States.  I say “man” on purpose, because twice in the last 8 years, the US electorate has proven that it cannot accept a woman as president, even though most of the world’s democracies have elected women as either prime ministers or presidents.

I am not going to pretend I am some expert on constitutional law or the reasoning of the justices on the United States Supreme Court. But before Trump’s impending ascendance to the US Presidency, I did want to read and understand the United States Supreme Court’s decision in Trump v United States, No. 23-939, released on July 1, 2024. (The “Trump Immunity Decision”.)

Briefly, the Supreme Court held as was expected, ruling in its usual 6-3 fashion.

Justices Roberts, Thomas, Alito, Gorsuch, and Kavanaugh joined in the full decision, and Justice Barrett joined except as to Part III-C, for which she filed a separate dissent). In addition, Justice Thomas filed a concurring opinion.

The three Democratic presidential appointees, Justices Sotomayor, Kagan, and Jackson filed a joint dissenting opinion, and in addition, Justice Jackson filed a separate dissent.

The ruling decided presidential immunity fell into three “spheres”, if you will:

1. A president has absolute immunity from criminal prosecution for official acts within his core executive powers.
2. A president is presumed immune to criminal consequence “within the outer perimeter of his official responsibility” (this is the “grey area”). This is a rebuttable presumption, meaning that the non-core presidential action may be prosecuted if it can be shown that the president acted with intent not within the purview of what constitutes an official act. 3. All the justices accepted that the president is NOT immune from prosecution for any unofficial acts.  (Opinion, Part III-C)

The three divisions raise additional questions.  What is a “Core” executive function?  How is an action deemed to be either “official” (and thus presumed immune from criminal prosecution) versus “unofficial” (and thus subject to prosecution)? Could the presumption of immunity from prosecution be overcome if it is shown that such prosecution will not disrupt a president from exercising his other “official” duties?

What constitutes a “Core” executive function is a combination of powers assigned by the US Constitution as well as statutes (laws) and case law.  In the words of Lincoln, played by Daniel Day Lewis, in the movie of the same name: “I am the President of the United States, clothed in immense power!” [I fact-checked and verified this quote – see https://www.dennyburk.com/lincoln-clothed-with-immense-power-really/]

Thus, in the words of Lincoln, relying on the Constitution, and bolstered by court opinions over the years, it would appear that most “core executive functions” would be immune from prosecution.  Of course, much mischief can be wrought during the time spent by endless courtroom wrangling over the scope of the “core executive function” privilege.

But what if an action is NOT a “core executive function”?  Is it then an “official act”, thus entitling the president to presumptive immunity? In analyzing the “officiousness” or lack thereof, of a presidential action, the Supreme Court has granted a US president yet another victory.   This time, the effect of the Trump immunity decision is probably even more insidious than its grant of immunity for actions that pass as “core executive functions.”  That is where Part III-C of the opinion plays a key role in determining what is and what is not an “official” presidential action.

To address the “minefield” of Part III-C of the majority opinion, I would respectfully comment as follows:

While the Supreme Court remanded the case back to the District Court for a fuller exposition of facts and decision-making to determine whether or not Trump deserved to be immune from acts that could or would not be considered official (the “grey area”, above), the decision lays a potentially impenetrable minefield for the prosecution.

How so?  In Part III-C of the opinion, the majority holds that, in its quest to show whether or not Trump (or for that matter, any president) engaged in “official acts”, or whether such acts were beyond what might be considered official, the prosecution may not introduce evidence which would “inquire into the President’s motives”. In justifying its reasoning, the majority held:

“If official conduct for which a President is immune may be scrutinized to help secure his conviction, even on charges that purport to be based only on his unofficial conduct, the “intended effect” of immunity would be defeated.”

and:

“The President’s immune conduct would be subject to examination by a jury on the basis of generally applicable criminal laws. Use of evidence about such conduct, even when an indictment alleges only unofficial conduct, would thereby heighten the prospect that the president’s official decision making will be distorted.”

If a president’s “official” decisionmaking would be affected, that falls within the sphere of “absolute” immunity.  The president’s ability to exercise his official authority potentially affects us all as citizens of the United States.  Hence, because the President’s official actions might be restricted by an investigation into his unofficial acts, the president’s motives or evidence of such motives cannot be called into evidence.

The Supreme Court therefore handed Trump basically what amounts to absolutely immunity for all acts. The chance that evidence of a president’s conduct – even for unofficial acts – would affect the president’s ability to engage in official acts effectively shields the president from scrutiny for all acts.

The effect of the ruling is clear:  If the prosecution cannot introduce any evidence of what might have motivated the President’s actions, and if this evidence, including the conduct of the President, his statements to subordinates, his writings or communications, or other actions in whatever form, cannot be reviewed and scrutinized by a judge or jury, it would be impossible to show the reasoning leading to the president’s actions.  Indeed, it would probably be impossible to even convince a grand jury to authorize a prosecution.   Even if a grand jury authorizes an indictment, if a prosecutor is prohibited from introducing evidence of a president’s motives at a criminal trial,  no jury or judge could be presented with evidence which meets the standard of “beyond a reasonable doubt” in order to convict.

This evidentiary bar applies even to unofficial acts. The Supreme Court stated, as cited above, that if the President’s conduct may be scrutinized, “even on charges that purport to be based only on his unofficial conduct”, then any immunity granted the President would be defeated. So, how does one prosecute even “unofficial” acts, when the very nature of the act itself cannot be discerned through testimony or evidence regarding motive or intent, including that arising from corollary actions?

Hence, in my humble and relatively unsophisticated opinion, this one section of the opinion is perhaps the most weighty and consequential. Essentially, the president is immune for any action!

Justice Barrett, though a Trump appointee, nevertheless dissented from Part III-C of the majority opinion. In her concurring opinion, Justice Barrett held that various existing evidentiary processes and rules were sufficient safeguards to prevent the admission of possibly inadmissible evidence. Justice Barrett weighed in against the majority’s blanket evisceration of the prosecution’s ability to bring any case against any President, for criminal misconduct either for official, or unofficial acts. Justice Barrett correctly notes that not permitting prosecutors to use any of the underlying and related evidence surrounding a presidential decision would essentially hamstring a prosecutor’s attempts to prosecute a presidential action which appears to be in violation of the law. The very function of the law is to present evidence to a trier of fact. If obtaining and using such evidence is restricted at the very outset, then the entire notion of a free and fair trial is shut down, and the prosecutor is left with little or nothing meaningful to work with. The majority dismissed Justice Barrett’s concern in one mere footnote, holding that a prosecutor may simply point to the public record which proves the president performed the official act.

Duh! We know what a president officially does. Presidential acts are usually recorded and reported. The question is whether the incoming administration will properly maintain and disclose official records.  [Trump himself lied over 30,000 times in just 4 years – see https://www.washingtonpost.com/politics/2021/01/24/trumps-false-or-misleading-claims-total-30573-over-four-years/ ]

It is the “why” which eludes scrutiny. And it is the “why” which is pivotal to determine whether a president has behaved criminally or not. Simply put, it would be an incredibly difficult task, unless a president incriminates himself publicly. Hard to imagine any president would disclose a criminal motive in public. A prosecutor may attempt to prosecute a president for an unofficial act, but the Supreme Court – which has piously permitted such prosecution – has so hobbled and defanged any prosecutor that such prosecutorial authority is rendered meaningless. For instance – the president orders a US Citizen imprisoned and removed to Guantanamo on the basis of “National Security”.   If evidence of motive and reason for such detention and removal cannot be introduced, how can a prosecutor pierce the veil of presidential immunity?  In another instance, the president accepts a gift for favoring a commercial transaction in some way.  How does a prosecutor show that such action is outside the orbit of “core” presidential power – in this example, foreign or interstate commerce? How does one prosecute a crime if one cannot introduce evidence of presidential motive?

 

The majority’s treatment of the dissents and Justice Barrett’s concurring opinion:

What is just as troubling is the majority’s treatment of the three dissenters’ opinions. The majority shoots down those dissents in an abrupt and cavalier fashion, dismissing them as mere rants expressing outlandish consequences. That is a troubling and disrespectful repudiation of the concerns of the dissenters who are just as qualified as the justices in the majority, and perhaps reinforces the majority’s determination to grant Trump presidential immunity for all acts, however repugnant.

 

Justice Thomas’s foray into unnecessary discussion

Justice Thomas – himself a recipient of much largess from friends, which might be considered inappropriate “gifts” and “favors” – seized upon an issue which was not even presented in the original briefing and argument. Namely, that the very appointment of a special prosecutor to investigate the president was unconstitutional. The concurrence by Justice Thomas was seized upon by Judge Aileen Cannon who quickly dismissed the entire indictment filed by special prosecutor Jack Smith (the Mar-A-Lago Classified Documents case: recall boxes of documents stored in a restroom, on the stage of a ballroom, and other locations in Mar-A-Lago) on the basis that his appointment was unconstitutional. (https://edition.cnn.com/2024/07/15/politics/classified-documents-case-trump-dismissed-aileen-cannon/index.html)

In addition to the examples above, A corrupt president could instruct the vast apparatus of the executive branch to act against political enemies – for instance, by asking the IRS to audit his enemies, or for USICE to raid a particular employer’s facilities to weed out “illegal” workers.  In other examples, the President could use his seemingly boundless immunity to siphon taxpayer funds into the coffers of his own businesses – for instance, using Trump properties for official travel as much as possible, or choosing to award government contracts to select connected business people who in turn contribute to him in whatever manner.  The scope of presidential corruption is as limitless as the immunity that makes it possible.

The Trump decision lays the foundation for malfeasance on an incredibly vast scale, not just for Trump, but for any future President.

Conclusion

As we have seen above, the Supreme Court has granted Trump a “gift that keeps on giving!” In penning Part III-C of the decision, the Supreme Court handed Trump its greatest gift: not only are some actions completely immune from prosecution, but additionally, even those actions which could conceivably subject the President to prosecution face a daunting and uphill evidentiary battle.

It is all but certain that Trump will shamelessly exercise and extend his claim of immunity into deeper and uncharted waters, pushing and pushing until, perhaps, he could even “Shoot Someone on 5th Avenue and not lose voters.” (https://www.snopes.com/fact-check/donald-trump-fifth-avenue-comment/)

Epilogue:

The status of the cases against Donald Trump:

With the election of Trump as president again in November 2024, Prosecutor Jack Smith has moved for dismissal of the Mar-A-Lago Documents case and has moved the files to the DOJ for a future prosecutor to handle.  (https://www.newsweek.com/jack-smith-hands-over-trump-classified-documents-case-2007683)

On the January 6 DC insurrection case, the Supreme Court’s decision in the Trump immunity case also brought by Special Prosecutor Jack Smith moves back to the trial court for determination of whether the president’s actions were official or not.  It is anticipated that the DOJ under Trump appointee Pam Biondi will simply move to dismiss the case.

Judge Mercham, in the New York state court case for misuse of campaign funds by Trump to pay hush money to porn star Stormy Daniels is scheduled for sentencing sometime before Trump’s inauguration in January 20, 2025.  However, Mercham has signalled that he will impose neither imprisonment nor probation against Trump. Trump has argued that the case should be dismissed as it is a politically motivated “witch hunt”. (https://www.forbes.com/sites/alisondurkee/2025/01/03/trump-to-be-sentenced-jan-10-as-judge-upholds-hush-money-conviction/)

Finally, the Georgia “Election Interference Case” (“find [Trump] 11,780 votes, which is one more than we have, because we won this state.” https://www.npr.org/2022/06/21/1106472863/georgia-officials-fact-check-infamous-trump-phone-call-in-real-time) has all but ground to a halt, thanks to a conflict of interest charge against Prosecutor Fanni Willis for appointing the man she was sleeping with to the position of Special Prosecutor. [I swear, I can’t make up bizarre stuff like this in my wildest dreams!]

In fact, Trump is even asking that the verdicts against him in the civil sexual assault and defamation cases – the only cases that have reached a conclusion –  brought by E. Jean Carrol be thrown out on the grounds that Trump “has been reelected by the American people”, in what amounts to an unsupportable extension of the decision in the Trump Immunity Case. (In oher words, the “I am the president, I can do no wrong, either past, present, or future, and even when I wasn’t the president” defense) (https://www.usatoday.com/story/news/politics/2024/12/30/trump-e-jean-carroll-sexual-abuse-defamation-appeal/75680589007/)

 

Acknowledgement:

Sincere thanks to C.J. Peters, C. Blake McDowell, Jr. Professor of Law, the University of Akron School of Law, Akron, Ohio, for reviewing a prior draft of this article and providing valuable comments.  This final version does not incorporate all his comments or suggestions and so I accept sole and full responsibility for any errors or omissions.

 

 

© Farhad Sethna, Attorney, 2025

Farhad Sethna has practiced law for over 30 years. He was awarded his JD in 1990 and his MBA in 1991, both from the University of Akron. Since 1996, he has also been an adjunct professor of Immigration Law at the University of Akron, School of Law, in Akron, Ohio, where he wrote and continues to use his own immigration textbook. Attorney Sethna is a frequent speaker at Continuing Legal Education and professional development seminars on various immigration-related topics. His practice is limited to immigration and small business. He has won awards for excellence in teaching and for pro-bono service. With offices in Cuyahoga Falls, Akron and New Philadelphia, Ohio, Attorney Sethna represents clients in all types of immigration cases before federal agencies and the immigration courts nationwide. A private pilot, it is Farhad’s goal to fly to each of Ohio’s 88 county airports. Our number is: (330) 384-8000. Please send your general immigration questions to farhad@sethnalaw.com. We will try to answer as many questions as possible.