As we told you yesterday.

The US Supreme Court ruled 6 to 3 that presidents have immunity for their official actions in office, but they do not have immunity for their unofficial acts.

The ruling is in connection to the case that alleges former President Donald Trump plotted to overturn his 2020 election loss.

I spoke a while ago today to UK law and university research professor Joshua Douglas about what all this means for past current and future presidents.

I think it has implications for every president and implications for a separate chain of powers.

Real quickly, the court essentially said that it will categorize a president's acts into three different categories, those that are clearly official acts of a president directed by the Constitution, those that are likely official acts, The court said to the outside bounds of what's an official act and a president has presumptive immunity for those actions.

So president can't be prosecuted for either official acts or things that are pretty close to official acts and then unofficial acts or things that the president does when they're acting as a regular citizen or as a candidate.

Implications are huge for Trump, obviously, because now the trial court in the D.C. case in which he's being prosecuted has to go through each of the allegations and decide what's an official act and what's not.

And the court, the Supreme Court said a lot of these things, like conversations with the Department of Justice, are official acts because that's a part of the executive branch.

But I think also it expands presidential power.

It really makes it so that any president knows that they're not going to be criminally prosecuted, especially when they're engaging in any sorts of conversations.

Even if those conversations would otherwise be illegal or actions would otherwise be illegal.

If they're doing it with, say, members of the Department of Justice, then they're immune from criminal prosecution.

Yeah.

And when would there be an instance when they weren't acting in their official capacity as president in any conversation?

One would say.

Well, I think the court is trying to say that if you're talking to in Trump's example, state officials are trying to get state officials to overturn the results of an election.

The court suggests at least so that would not be an official act of the president.

But certainly all of the conversations with Vice President Pence, the conversations with anyone in the Department of Justice about doing any kind of investigation, even if Trump knew that there was no basis in fact for the allegations of election fraud.

And so he was trying to and the allegations say, subvert the correct results of the election because he was talking to members of his executive branch.

Those are immune now from criminal prosecution.

Yeah, the chief justice insisted that the president, quote, is not above the law.

But Justice Sonia Sotomayor, who was had a fiery dissent, I know that you've read in total, said and every use of official power, the president is now a king above the law.

Is that hyperbolic?

Immune.

Immune.

Immune.

Right.

As Justice Sotomayor wrote after she gave a various examples.

Justice Catanese, Brown Jackson also wrote a dissent in which she provided some interesting examples.

One thing she said was that, you know, it's an official act to remove someone from the Department of Justice, right, if you serve at the pleasure of the president.

But Justice Jackson asked what if he removed them by poisoning them?

Well, that's clearly not a criminal.

You know, that's not a legal thing to do.

That would be criminal for any of us to do it.

But now, if the president does it, that means that he's immune from criminal prosecution.

The majority doesn't really answer that question adequately.

It leaves a lot of doors open for well, hopefully we never have the kind of hypotheticals that Justice Sotomayor and Justice Jackson suggest.

But the majority's opinion by Chief Justice Roberts doesn't really answer these questions beyond setting a framework for is this an official act?

Is it pretty close to an official act or is it now, I think, fairly narrow category of unofficial acts?

Yeah.

Sounds a lot like a lot of ambiguity here.

That's left up for interpretation and subjectivity, which is supposed to be, I think, antithetical to how we see the exercise of the law.

Well, I'm not sure about subjectivity because the court would say that the judges are doing what judges do.

They are interpreting the law given the facts in front of them.

So now this is going to go to the trial judge in Trump's case for her to hold a hearing to determine whether certain things are official acts or not.

But the court actually added a really important and perhaps dangerous aspect of this hearing, which is that she can't inquire into the president's motives when he's engaging in an official act.

It doesn't matter what he was trying to do.

If the act itself was pursuant to his authority as president, then you can't question it and you can't use that as evidence when you're talking about conversations with the state officials.

For example, unofficial presidential acts.

You can't bring in any evidence of what he did as acting as president in his official capacity to help prove the motive for the underlying justification for what occurred at the state level.

So there's also a wrinkle here in about how that hearing will even take place.

Yeah.

Let's talk about another case real quickly.

And that was the Chevron decision that was issued.

I guess that was on Friday.

How was this connected to what the Supreme Court did just yesterday?

So in the Chevron case, it's called Chevron because the case from 1984 is called Chevron.

Chevron versus Natural Resources Defense Council.

That case was about administrative agencies and then essentially said that anytime an agency is interpreting an ambiguous federal law, the federal courts have to defer to the agency because they're the experts in education for the Department of Education or, you know, food policy for the FDA.

The court overturned that precedent.

40 years old, and said no longer do federal courts have to defer to an agency's reasonable interpretation of an ambiguous statute.

How are these two cases connected?

Well, I think what we see is the court giving itself more and more power.

The justices are kind of in a power struggle where they're taking more and more power to themselves, because now, instead of a rule that you must defer to the expertise of an agency that's doing this every day, the court says, no, the federal judges get to second guess the agency and decide this with ultimate review at the Supreme Court.

In the Trump community case, this is going to go to the trial court.

But any decisions as to what's an official act versus not an official act will be reviewed by who the Supreme Court justices.

And so in Justice Jackson points out in her dissent that it's the court and the justices keeping more and more power to themselves.

And it's not just these two cases.

I think this has been a project over the past several terms where you look at a lot of the cases and you see the justices are saying, you know, who gets to decide these issues?

It's us.

So it's really not judicial restraint.

Like you often think of the conservative wing of the Supreme Court engaging in.

It's an exercise of judicial power.