In the summer of 2024, the Supreme Court of the United States shocked the world by issuing a ruling that appeared to contravene the Constitution of the United States and all of the principles on which the republic was founded. In the awkwardly named case Trump v. United States, a majority of the Justices found that Presidents enjoy “absolute immunity” for some official acts—specifically those within the “conclusive and preclusive constitutional authority” of the Presidency.

The word “absolute” has been widely read as meaning the President enjoys “blanket immunity”—covering any act he or she might take while in office. The majority opinion, however, does not say this. In fact, the use of the word “absolute” in the ruling is an attempt to strictly narrow the scope of immunity for acts within the lawful authority of the President.

Much of the reporting on the dangers of “the immunity ruling” overlooks this narrowing effect, largely because the grant of any immunity is an expansion of a unique privilege no one is supposed to have under U.S. law. But the point is fairly straightforward. The Court lays out three different ranges of activity, two of which enjoy different levels of provisional immunity from prosecution.

The Court notes at the top of its ruling that “A federal grand jury indicted former President Donald J. Trump on four counts for conduct that occurred during his Presidency following the November 2020 election.” The allegation was that he had sought to abuse presidential authority to overturn the results of the election and override the will of the people and the Constitution of the United States.

Two federal courts upheld the indictment and denied any claim of immunity, as the Constitution recognizes no such exception to the rule of law. Neither took a view of whether the actions in question qualified as “official acts”, within the scope of lawful Presidential authority. The lawfulness was, in their view, to be determined by a jury, based on evidence and the presentation of facts and of the law.

The Supreme Court’s “immunity” finding complicates this rationale, but does not discard it. The core finding is summarized as follows:

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.

The most important word in that passage is “separated”. It is the most important, because the Court is recognizing and referencing the separation of powers, what we more commonly talk about as “checks and balances”. The Court could not issue a finding on Constitutional law without recognizing the separation of powers, so they do.

The separation of powers means that some authorities are strictly within the scope of Executive responsibility. They may be reviewable; they may be questioned or put to a legislative or judicial test, but that does not mean the proper check for such actions is prosecution. For instance:

• Though the withdrawal from Afghanistan was messy, tragic, and could have been handled differently, President Biden cannot be prosecuted for the embarrassing series of events that played out, nor can Trump be prosecuted for the decisions he made that effectively surrendered to the Taliban and left the new administration with no good options.
• Federal legislation requires the Environmental Protection Agency to limit harmful pollution of air and water, including pollution that causes global heating; while Congress might disagree with the regulatory procedures that follow, none of the Presidents who instituted those regulations can be prosecuted for regulatory action required by Congress.

Such Executive actions can be reviewed, revised, and restructured, with input by the Legislature and the Judiciary, but prosecution for such official acts would be an abuse of the Legislative or Judicial powers. That does not mean that Presidents can never face prosecution.

The structure the Court sets up in the Trump v. United States opinion has three main concentric circles of Presidential activity: Core Duties, actions within the Outer Perimeter of Presidential authority, and Personal Actions, which are in no way related to official responsibilities of the office. In terms of immunity from prosecution, these three areas break down, more or less, as follows:

1. Core Duties – The Court found that for actions that are clearly within the lawful Core Duties, the “conclusive and preclusive constitutional authority” of the Presidency, a President enjoys “absolute immunity“. No prosecution can be entertained for such actions, as laid out above.
2. Outer Perimeter – There is, however, a gray area, the so-called “Outer Perimeter” of Presidential authority—where a President might have authority to direct the actions of federal agencies but might do so in ways that are not strictly required or authorized by law. Here, the Court finds Presidents should be given “presumptive immunity“, or rather, that Courts should treat such questions as generally presumed to be official acts, unless evidence makes clear this is not the case.
3. Personal Actions – For actions that are strictly personal in nature—including commercial activities or illicit activities—there is no immunity from prosecution.

The opinion does not grant Presidents blanket immunity from prosecution, nor does it make so-called “absolute immunity” the sole applicable standard in all, or even most cases. In reality, the vast majority of questions of the legality or potential criminality of Presidential activity will surely fall within the 2nd and 3rd areas.

• It is hard to imagine any prosecutor trying to indict a President for the shape of their signature on a piece of legislation, or for giving an uninspiring State of the Union address, or even for putting gold leaf on plaster adornments in the Oval Office.
• Far more likely are prosecutions for flagrantly criminal activity—soliciting or accepting bribes, racketeering activity (using force or the threat of force to extract personal favors), orchestrating an intentional miscount or misrepresentation of the votes cast in an election, encouraging violence to punish or coerce critics.
• Such acts are personal actions and criminal in nature and would enjoy no immunity.

In the case reviewed by the Court, where Trump attempted to use the powers of office to engineer a different outcome in the 2020 election. Trump’s lawyers argued this was at least within the “Outer Perimeter” of Presidential authority, because Presidents should ensure elections are conducted honorably, and that was, they argued, his aim.

The Court stumbled into a legal and historical minefield with this case, because the actions Trump undertook were certainly not “Core Duties” of the Presidency—calling local officials to demand they “find” the exact number of votes needed to hand their state’s Electoral College votes to him. Seeking office is not a core duty of the Presidency, and corrupt requests clearly fall outside the “Outer Perimeter”. Plus, the Constitution is clear: the States manage elections, not the Executive.

The application of presumptive immunity in the case before the Court was not a matter of historical precedent, but of momentary convenience. The Court effectively argued that there was enough of a gray area to warrant reviewing the facts of the case before a new indictment, and that an indictment should be treated as inappropriate, given the 2024 election was underway, and more serious legal chaos might ensue should Trump be convicted and imprisoned.

Where does that leave us, in 2025?

Though the Court’s reasoning is, at times, strained and baseless (there is no absolute Executive authority; the President is, in fact, bound more than any other person by the rule of law), the Core Duties category arises only when no part of the President’s actions is in any way legally questionable.

“Presumptive immunity” for acts within the “Outer Perimeter” of Presidential authority is merely a recommendation that prosecutors and judges prioritize deference to the separation of powers and carefully consider material evidence. Where there is evidence of flagrantly unlawful acts, an indictment might proceed based on the finding that such acts fall outside the scope of lawful Presidential authority. When that is the case, no immunity can apply.

Presidential authority is outlined, explicitly, in law. The President, therefore, has no lawful authority to assign the Vice President the task of eliminating “improper ideology” from the language used in historical exhibits in the museums managed by the Smithsonian Institution.

The First Amendment says clearly “Congress shall make no law abridging the freedom of speech…” Since no law can be issued, and no power exists outside of those assigned by law, the President has no authority to police speech, belief, or museum exhibits. There is no way for such actions to be Core Duties, so a court would have to examine whether they fall within the “Outer Perimeter” of Presidential authority.

Since the First Amendment makes this impossible, there could be a review of evidence to determine if the President’s overreach is a matter for civil litigation to curtail Executive overreach or whether it forms part of a criminal enterprise of some kind. Where such actions have been undertaken to coerce favors and/or payments from law firms, media outlets, and universities, a federal court might find that “presumptive immunity” cannot hold.

Unlawful acts, which flagrantly misuse the powers of the Presidency for illicit purpose, are not Core Duties, and they do not fall within the Outer Perimeter of Presidential authority. The republic is not well served if Presidents are prosecuted by political rivals for political reasons, but the rule of law is still paramount.

The President is not immune from prosecution for illegal acts. Presidents cannot run criminal enterprises from the Oval Office or systematically ignore the Constitution, the Bill of Rights, or other fundamental rights of the People.