Presidential Immunity: What is an Official Act and What is an Unofficial Act?

VI

The majority is not content to simply invent expanded criminal immunity for former presidents, but goes a dramatic and unprecedented step further. It says that acts for which a president is immune must be expunged from the narrative of even entirely private crimes committed in office. They must play no role in proceedings involving private criminal acts. See previous, pp. 30–32.

Although the majority’s immunity analysis supposedly leaves unofficial acts open to prosecution, its draconian approach to evidence from official acts deprives those accusations of any force. If a former president cannot be held criminally liable for his official acts, those acts should still be admissible as evidence of knowledge or intent in criminal prosecutions for unofficial acts.

For example, most people have trouble classifying whether a president’s speech is in his role as president (an official act) or as a candidate (an unofficial act). Imagine that the president states in an official speech that he intends to stop a political rival from passing legislation he opposes, no matter what it takes to do so (an official act). He then hires a private hitman to assassinate that political rival (an unofficial act).

Under the majority rule, the murder indictment could not include an allegation of the President’s public admission of an intentional intent to further the mens rea of ​​murder. This is, to say the least, an odd result.(5)

The supermajority rule has no legal basis. Consider the context of the First Amendment. Although the First Amendment prohibits the criminalization of most speech, it “does not prohibit the evidentiary use of speech,” including its use “to prove motive or intent.” Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993). Evidence rulings and limiting instructions can ensure that evidence about official acts is “considered only for the proper purpose for which it was admitted.” Huddleston v. United States, 485 U.S. 681, 691–692 (1988).

The majority has no coherent explanation for why these safeguards, which are sufficient in every other context, would be insufficient in this case. They argue simply that they would be “untenable” and would deprive the immunity of its “intended effect.” Ante, p. 31 (quoting Fitzgerald, 457 U.S. at p. 756). The majority ventures to explain that the use of evidence from official records “would create a unique risk that the jury’s deliberations would be prejudiced by their views of the President’s policies and actions while in office.” Ante, p. 31.

But that “exceptional risk” is not a product of introducing evidence from official records. It is simply a risk inherent in any lawsuit against a former president, including private prosecutions, which most would argue would allow.

(5) The majority suggests in a footnote that “the prosecutor may point to the public record to establish the fact that the President executed an official act,” provided that the prosecutor does not “invite the jury to examine” the act in any way. Ante, p. 32, n. 3. Whatever this suggestion is supposed to accomplish, it does not save the majority’s senseless rule of evidence.