You might be hearing that a president still could be prosecuted even for official acts if the presumption of immunity is rebutted. But that ignores three more granular features of the opinion that are akin to prosecutorial roadblocks. 1/
First, the bar to rebut that presumption is HIGH. The court says the question to ask is whether prosecuting the official act in question “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” 2/
Second, the government can never use evidence of official acts that don’t clear that bar. Put another way, if it can’t be charged, it can’t come in, even to inform the jury’s understanding of a president’s knowledge or intent. 3/
What does that mean practically? Think about the various times that DOJ officials told Trump he had lost and/or that there was no widespread evidence of fraud justifying further investigations or action. All of those instances are off the table as trial evidence now. 4/
And third, in determining what is and is not official, courts cannot consider a president’s motive or purpose. A president raids the home of a political rival because of their beef, not because of any legitimately suspected criminal activity? The beef is irrelevant legally. 5/
Today’s decision forces Jack Smith and future prosecutors to do their jobs with both hands tied behind their backs even as to the small slice of conduct that might be fair game. And that, in and of itself, is not fair game at all. 6/
Moreover, before even getting to the divide between official and unofficial acts, the court confers absolute immunity for the president’s “exercise of his core constitutional powers. Don’t sleep on that either; we’ll see plenty of litigation ahead about what’s in that bucket. 7/
The bottom line: The majority has not put a thumb of the scale for former President Trump; they’ve put their whole hand on it.
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