Across the history of Supreme Court opinions, some cases are known more for a footnote than for a holding. If the nation is lucky, Jack Smith will follow the cue in footnote 2 of Justice Amy Coney Barrett’s concurrence in Trump v. United States, allowing us to forget the mess that is the rest of that opinion.
In the criminal context, however, the Court has apparently now granted the President something less: The President has just a presumptive immunity for acts within the “outer perimeter of his official responsibility.” In any particular case, the prosecutor must demonstrate why that presumption should be overcome. Trump v. United States (2024). (Even this presumptive immunity is just presumptive for now: The Court expressly says it’s not sure whether it is presumptive or absolute. We’ll just have to wait and see…)
Justice Barrett’s footnote two, however, suggests why answering that question — what is the scope of presidential immunity in the criminal context ?— may not have been necessary. Because even assuming the broadest conception of immunity — reaching to the “outer perimeter of his official responsibility,” as the Court in Fitzgerald put it — the trigger is still some “official responsibility.” Or, under Justice Story’s framing of the question, the trigger is his “discharg[ing] the duties of his office.” If he is not acting on his “official responsibility” or discharging the “duties of his office,” his actions are private and not immune.