The Supreme Court’s presidential criminal immunity decision in Trump v. United States  suffers from shallow reasoning, lack of historical support, and distortion of legal precedent. This piece addresses three major flaws in the decision. All three derive from the Court’s failure to examine and differentiate the source and scope of presidential power — whether constitutionally or congressionally derived and, where the former, whether exclusively committed to the president or not. The three flaws are: the majority’s reliance on separation of powers to justify finding criminal immunity for all official presidential action (even outside the areas of exclusive presidential authority) despite its absence from the text or history of the constitution, its seeming preclusion of reliance on the criminal law to differentiate official from unofficial presidential conduct (again even outside of areas of exclusive presidential authority), and its similar preclusion of the president’s motives in making the determination as to whether conduct is official or not. 

Chief Justice John Roberts penned the majority opinion, which created (at the very least) a strong presumption of immunity for any official act taken by the president. It also precludes using evidence of such acts in a criminal case against the president, even one for private conduct – say, for example, paying hush money to a porn star to mislead the voting public in advance of the 2016 presidential election.