Many critics of the Supreme Court’s recent decision on presidential immunity conclude that it shields the president from criminal prosecution if he uses his “official” powers to commit a crime. This overstates the six-member majority’s holding. The key distinction is between “official” and “unofficial” acts. If the president commands civilian or military authorities to perform an act not authorized by the Constitution—such as assassinating a political opponent—this cannot be an “official” act. It follows that much, if not all, of the illegal activity in which a president might engage would be “unofficial conduct” for which there is no immunity from prosecution. This reading of the majority opinion is consistent with the views of leading founders, such as Alexander Hamilton and James Wilson, who assured early Americans that presidents could be prosecuted for committing crimes while in office even when employing Article II authorities. Nonetheless, the majority goes too far in implying that the president has absolute immunity for his or her deliberations with executive branch subordinates.
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