The US Supreme Court is poised to reckon with what constitutes an official presidential act in weighing former President Donald Trump’s claim that he’s immune from being criminally prosecuted for trying to overturn the 2020 election.

Trump argues the charges are all based on actions he took in his official capacity as president. Prosecutors say nothing he did in trying to remain in power despite his loss was conduct of the office.

The justices could try to draw a line between these starkly different views and end up with a ”mixed decision where the former president is immune for allegations stemming from certain types of acts but not others,” said Smita Ghosh, appellate counsel at the Constitutional Accountability Center, a public interest law firm and think tank.

Little Guidance

With little guidance for the court to go on, legal scholars warn it’s not easy to make a distinction between acts that are immune from criminal liability and those that aren’t.

An “official act” of the presidency isn’t a term that’s rooted in the Constitution or a federal statute. It was created largely by the Supreme Court in Nixon v. Fitzgerald, said Matthew Seligman. He’s a fellow at Stanford Law School’s Constitutional Law Center and co-counsel on a brief supporting the government in Trump’s case.

In that 1982 decision, the court said the president has absolute immunity from civil suits that are based on his “official acts” and that immunity extends to the “outer perimeter” of his duties.

Trump leans heavily on that decision to support his claim for absolute immunity from Special Counsel Jack Smith’s criminal case against him on four charges. Those stem from allegations that he promoted false claims of election fraud and urged the Justice Department to investigate them, tried to get Vice President Mike Pence to alter the election results when Congress was certifying Joe Biden’s win, and directed his supporters to storm the Capitol on Jan. 6, 2021.

Aside from Fitzgerald there’s little to inform the court on what’s an official act, said Kate Shaw, a University of Pennsylvania law professor who co-hosts “Strict Scrutiny,” a podcast on the Supreme Court.

Shaw and other legal scholars said the justices could look to the US Court of Appeals for the DC Circuit’s December ruling in Blassingame v. Trump, which also dealt with Trump’s actions in the run up to and on Jan. 6. In the civil suit, Capitol Police and members of Congress brought against him, the appeals court said Trump was essentially acting as a candidate for office and campaigning for reelection isn’t an official act of the presidency.

The appeals court refused to rule Trump is immune from the litigation at this early stage, but said he must be given an opportunity in the lower court to develop his own facts and show he was acting as the president rather than as a candidate.

Some supporters argue that won’t be hard to do.

“The election was over so he wasn’t campaigning for office,” said Michael Boos, executive vice president and general counsel of Citizens United, a conservative nonprofit that filed a brief supporting Trump in his claim of immunity at the Supreme Court.

“He was sitting in the White House,” he said. “If you recall, he offered National Guard assistance, he told people to be peaceful in their demonstrations. He was certainly acting in his capacity as president of the United States.”

Certain Circumstances

While Boos would like to see the court to draw a hard line that says the president is immune from criminal prosecution, he said it could try to separate actions taken by a first-term president campaigning for reelection from the duties performed in the outer parameters of the presidency.

“Myself, I don’t know exactly where you draw the line because even when the president’s traveling, often it’s campaign activity mixed with official business,” Boos said.

His group argues the court could resolve the dispute in an easier way by ruling the special counsel doesn’t have the authority to prosecute Trump.

Others say the acts the president takes as commander in chief could be another dividing line.

“Obviously, in time of war the president is making decisions about which military assets to use, sometimes which targets to attack,” said Saikrishna Prakash, a University of Virginia School of Law professor who teaches constitutional law and presidential powers. “I could imagine at least some of the people on the court might be open to the idea that, when the president acts as commander in chief, there should be immunity from criminal liability.”

Seligman noted Chief Justice John Roberts, and Justices Elena Kagan and Brett Kavanaugh are all former executive branch lawyers.

They’re “likely to be concerned about protecting exclusive executive power in certain limited circumstances,” he said. “That doesn’t mean, however, that they’re going to adopt former President Trump’s expansive view that all official acts are immune from prosecution.”

Even if Trump is entitled to some immunity for official acts, the federal government says the there’s no basis for his claim for immunity.

Richard Nixon’s official conduct during Watergate, and his acceptance of a pardon following his resignation from office implied that he and his successor, Gerald Ford, recognized former presidents can be prosecuted for actions taken while in office, the government said.

Legal scholars and attorneys for and against Trump’s position in this case expect the justices to let the trial court be the first to determine which of the charges against Trump allege official acts.

The difficulty of identifying what kinds of acts would be subject to immunity illustrates the folly of even trying to recognize a novel and unsupported form of immunity, Shaw said.