Presidential Immunity: What's an Official Act vs an Unofficial One?

VI

Not content simply to invent an expansive criminal immunity for former Presidents, the majority goes a dramatic and unprecedented step further. It says that acts for which the President is immune must be redacted from the narrative of even wholly private crimes committed while in office. They must play no role in proceedings regarding private criminal acts. See ante, at 30–32.

Even though the majority’s immunity analysis purports to leave unofficial acts open to prosecution, its draconian approach to official-acts evidence deprives these prosecutions of any teeth. If the former President cannot be held criminally liable for his official acts, those acts should still be admissible to prove knowledge or intent in criminal prosecutions of unofficial acts.

For instance, the majority struggles with classifying whether a President’s speech is in his capacity as President (official act) or as a candidate (unofficial act). Imagine a President states in an official speech that he intends to stop a political rival from passing legislation that he opposes, no matter what it takes to do so (official act). He then hires a private hitman to murder that political rival (unofficial act).

Under the majority’s rule, the murder indictment could include no allegation of the President’s public admission of premeditated intent to support the mens rea of murder. That is a strange result, to say the least.[5]

The majority’s extraordinary rule has no basis in law. Consider the First Amendment context. Although the First Amendment prohibits criminalizing 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). Evidentiary rulings and limiting instructions can ensure that evidence concerning 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 as to why these protections that are sufficient in every other context would be insufficient here. It simply asserts that it would be “untenable” and would deprive immunity of its “‘intended effect.’” Ante, at 31 (quoting Fitzgerald, 457 U. S., at 756). The majority hazards an explanation that the use of official-acts evidence will “raise a unique risk that the jurors’ deliberations will be prejudiced by their views of the President’s policies and performance while in office.” Ante, at 31.

That “unique risk,” however, is not a product of introducing official-acts evidence. It is simply the risk involved in any suit against a former President, including the private-acts prosecutions the majority says it would allow.

[5] The majority suggests, in a footnote, that a “prosecutor may point to the public record to show the fact that the President performed the official act,” so long as the prosecutor does not “invite the jury to inspect” the act in any way. Ante, at 32, n. 3. Whatever that suggestion is supposed to accomplish, it does not salvage the majority’s nonsensical evidentiary rule.