“”A disproportionate number of undocumented immigrants are convicted of driving without a license” or “using a false Social Security Number,” notes the Law Enforcement Immigration Task Force. But immigrants “are less prone” to committing crimes that are unrelated to their immigration status, it continues. “Existing evidence shows that immigrants do not represent a threat to public safety any more than every other segment of the population.””
“Former President Donald Trump pulled out of the scheduled ABC debate and tried to push for a showdown on Fox News instead, drawing open derision from the Harris campaign and throwing into doubt whether any debates would take place in the general election.”
“The answers are a bit complicated because Project 2025 encompasses a lot of different things (and there are some claims about what’s in it that are simply false). I think of its agenda as falling into three buckets:
1) Concentrating power in the presidency: The idea here is to give Trump and his appointees more power over the executive branch relative to permanent nonpartisan civil service professionals (who he disparages as the so-called “deep state”). Critics fear this will lead to the abuse of power and political hackery. Trump supports these ideas and we have every reason to believe he’d implement them.
2) Achieving longtime conservative priorities: This is stuff like slashing regulations, reducing federal spending on the poor, ditching efforts to fight climate change, ramping up military spending, and so on. Many progressives think these ideas are terrible, but they aren’t exactly new. Trump supports basically all of these. (Project 2025 mostly avoids taking firm positions on issues where Trump breaks from the conservative consensus, such as trade.)
3) Taking a hardline religious-right agenda: The project lays out quite aggressive proposals to use federal power to prevent abortions and restrict certain contraceptive coverage. It even says that pornography should be “outlawed” and its creators and distributors should be “imprisoned.””
“When Trump urged the Justice Department to investigate his baseless allegations of election fraud, Roberts says, he was exercising his “conclusive and preclusive” authority. The executive branch has “‘exclusive authority and absolute discretion’ to decide which crimes to investigate and prosecute,” he writes, “including with respect to allegations of election crime.”
The indictment also alleges that Trump “attempted to enlist” Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” Trump wanted Pence to reject electoral votes for Joe Biden from several battleground states and send them back to state legislatures to consider whether he actually won them. When the president and the vice president “discuss their official responsibilities,” Roberts says, “they engage in official conduct.” The government therefore has to overcome a presumption of immunity, which means the district court must consider whether prosecuting Trump based on these conversations would impermissibly intrude on executive authority.
Other allegations involve Trump’s interactions with state officials and private parties. Trump tried to persuade state officials that the election results had been tainted by systematic fraud, and his campaign enlisted “alternate” electors whom he wanted state legislators to recognize instead of the Biden slates.
Those actions, Trump maintained, were “official” because he was trying to ensure the integrity of a federal election. To the contrary, Special Counsel Jack Smith argued, Trump was trying to undermine the integrity of the election, and he did so in service of his interests as a political candidate, not as part of his presidential duties. According to the Supreme Court, the district court therefore must determine, as an initial matter, “whether Trump’s conduct in this area qualifies as official or unofficial.”
Finally, the indictment cites Trump’s behavior on January 6, 2021, the day his supporters, inspired by his phony grievance, invaded the U.S. Capitol, interrupting the congressional tally of electoral votes. Trump’s conduct that day consisted mainly of his speech at the pre-riot “Stop the Steal” rally and various tweets. Roberts notes that the president has “extraordinary power to speak to his fellow citizens and on their behalf.” Generally speaking, his public communications therefore “are likely to fall comfortably within the outer perimeter of his official responsibilities.” Whether Trump’s communications counted as official acts, Roberts says, depends on the “content and context of each,” requiring “factbound analysis” by the district court.”
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“The majority says Trump cannot be prosecuted for urging the Justice Department to embrace his stolen-election fantasy because such conversations fell within his “conclusive and preclusive” authority to enforce federal law. But the president is also commander-in-chief of the armed forces, which suggests that orders to the military, whether they involve assassination or a coup, likewise trigger absolute immunity. The president has plenary authority to issue pardons, which suggests impeachment might be the only remedy if he takes a bribe in exchange for granting one.
That remedy, as Roberts notes in rejecting Trump’s interpretation of the Impeachment Judgments Clause, could be foreclosed by timing or a lack of political will. If a president abuses his powers toward the end of his term (as happened in this case), resigns immediately afterward, or conceals his crimes well enough that they do not come to light until after he has left office, impeachment will not be a viable option, and his prosecution could be blocked by “absolute” or “presumptive” immunity, leaving no way to hold him accountable.
Roberts glides over such possibilities, focusing instead on the threat to presidential authority that allowing prosecution for “official acts” could pose. One of the charges against Trump, for example, alleges that he defrauded the United States, which is a felony punishable by up to five years in prison under 18 USC 371. Section 371, Roberts notes, “is a broadly worded criminal statute” that can cover “any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government.” Since “virtually every President is criticized for insufficiently enforcing some aspect of federal law,” he says, “an enterprising prosecutor in a new administration may assert that a previous President violated that broad statute.”
Without immunity, such prosecutions of former presidents “could quickly become routine,” Roberts worries. “The enfeebling of the Presidency and our Government that would result from such a cycle of factional strife is exactly what the Framers intended to avoid. Ignoring those risks, the dissents are instead content to leave the preservation of our system of separated powers up to the good faith of prosecutors.””
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“Barrett disagrees with the majority’s holding that “the Constitution limits the introduction of protected conduct as evidence in a criminal prosecution of a President, beyond the limits afforded by executive privilege.” In a bribery case, for example, the official act that a president allegedly performed in exchange for money would be clearly relevant in establishing his guilt. “Excluding from trial any mention of the official act connected to the bribe would hamstring the prosecution,” Barrett writes. “To make sense of charges alleging a quid pro quo, the jury must be allowed to hear about both the quid and the quo, even if the quo, standing alone, could not be a basis for the President’s criminal liability.”
In response, Roberts says “the prosecutor may point to the public record to show the fact that the President performed the official act” and may submit “evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act.” But the prosecutor may not offer “testimony or private records of the President or his advisers probing the official act itself.””
“Both sides in the case agreed that a former president can be prosecuted for “unofficial acts,” a point that Chief Justice John Roberts affirmed in his majority opinion. But Roberts added that a former president is “absolutely immune from criminal prosecution for conduct within his exclusive sphere of constitutional authority.”
It is not clear exactly which conduct falls into that “exclusive sphere,” although Roberts said conversations in which Trump urged the Justice Department to investigate his bogus claims of systematic election fraud clearly did. Adding to the uncertainty, the majority said even “official acts” outside “the core” of a president’s duties merit “at least a presumptive immunity from criminal prosecution,” which the government can overcome only if it “can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.'”
The strictness of that test, combined with the lack of clarity about which acts are “official,” suggests that the distinction between “absolute” and “presumptive” immunity is apt to dissolve in practice. And even if it proves meaningful, the Court said absolute immunity might ultimately be required for all conduct “within the outer perimeter” of a president’s “official responsibility.”
Under the majority’s reasoning, Justice Sonia Sotomayor warned in a dissent joined by Justices Elena Kagan and Ketanji Brown Jackson, a president “will be insulated from criminal prosecution” when he “uses his official powers in any way.” That shield, Sotomayor said, would extend to a president who “orders the Navy’s Seal Team 6 to assassinate a political rival,” who “organizes a military coup to hold onto power,” who “takes a bribe in exchange for a pardon,” or who insists that the Justice Department use fabricated evidence in a criminal case.
Instead of explaining why immunity would not apply in such situations, Roberts faulted Sotomayor for “fear mongering on the basis of extreme hypotheticals.” He dismissed the threat posed by lawless presidents because he was focused on the supposed need to protect “an energetic executive” from the threat of criminal liability.
As Sotomayor noted, however, presidents have been operating under that threat for a long time. “Every sitting President,” she wrote, “has so far believed himself under the threat of criminal liability after his term in office and nevertheless boldly fulfilled the duties of his office.”
Former President Richard Nixon, who did not suffer from a notable lack of executive energy, evidently shared that long-standing assumption. After he resigned amid the Watergate scandal, Nixon accepted a pardon from his successor, Gerald Ford, that covered any federal offenses he may have committed as president.
According to the proposed articles of impeachment, those offenses included many acts that would count as “official” in Roberts’ book, such as “false or misleading public statements,” misuse of the CIA and the IRS, and interference with an FBI investigation. If Nixon was immune from prosecution for those acts, his pardon is a bit of a puzzle.
As that episode illustrates, we need not conjure “extreme hypotheticals” to understand the danger of a president who feels unbound by the law. In the real world, the risk of presidential paralysis pales beside the risk of presidential impunity.”