A. The Executive Vesting Clause and Separation of Powers

This section is in aid of Part I's argument

I. A Former President Enjoys Absolute Immunity from Criminal Prosecution for His Official Acts

in response to the Court's framing of the question

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

Conclusion urged

Article III courts cannot sit in criminal judgment over a President’s official acts.

After a long, scholarly review of cases and authorities stretching back unto Marbury v. Madison (1803) concerning whether a president's performance of the duties assigned to him pursuant to the Constitution or enacted into law by Congress, the conclusion doesn't appear flawed on its face. But, but, but … . "Official acts, where are they in the allegations?" Allegations in a criminal case are statements of fact in the indictment that must be proven at trial and establish one or more elements of a crime. In this case the crimes charged are conspiracies. The allegations made in the complaint cover a broad range of conduct by Trump and co-conspirators in furtherance of a conspiracy. How is a conspiracy an official act?

Well, a conspiracy is not something that a president is empowered to do. A conspiracy is a not even a fact, it is a conclusion. Furthermore, it is a conclusion to be reached based on proof of the allegation that

The Defendant and his co-conspirators committed one or more of the acts to effect the object of the conspiracy alleged [emphasis added]

Indictment. (¶ 124)

No acts, no conspiracy.

Now is it possible that an official act of the president that would not be subject to judicial review in and of itself might be so subject if that act is in furtherance of a conspiracy?

Consider the call to the Georgia Secretary of State asking him to find 11,780 votes ("one more than I got"). In the Georgia case, Trump's chief of staff Mark Meadows attempted to remove the case to federal court and failed. An underlying allegation in that case was that Meadow's performed the act of providing the telephone number of the Secretary of State for the purpose of arranging the call and doing so was in furtherance of the conspiracy. Meadow's argued that arranging telephone calls was a normal part of his duties. Be that as it may, it was found not to be a normal part when performed in aid of a conspiracy. Alter the facts slightly and Meadows asks an assistant to get the number and the assistant has no knowledge of the conspiracy. He or she might be a percipient witness but should not be identified, without more, as a co-conspirator, whereas Meadows in performing the act of obtaining and providing the number did know that it was in furtherance of the conspiracy, intended it to be used for that purpose and actually joined and participated in the call.

This part of the argument dodges two questions: 1) what the president's conduct alleged to involve official acts were and 2) what were those official acts? Because this is an appeal, neither is a fact question to be proved by evidence and rebutted by other evidence. The only place to look is at the indictment itself.

d. Co-Conspirator 4, a Justice Department official who worked on civil matters and who, with the Defendant, attempted to use the Justice Department to open sham election crime investigations and influence state legislatures with knowingly false claims of election fraud.

Indictment. (¶8)

On December 22, the Defendant met with Co-Conspirator 4 at the White House. …

Indictment. (¶71)

A meeting at the White House with a Justice Department official is clearly conduct but what official act is this conduct alleged to be involved with?

That afternoon [December 27], the Defendant called the Acting Attorney General and Acting Deputy Attorney General and said, among other things, "People tell me [Co-Conspirator 4] is great. I should put him in."

Indictment. (¶74)

The call is more alleged conduct, the subject is the exercise of the president's authority and discretion to appoint acting cabinet secretaries and the conduct involves an official act, even though it did not come to pass. The defense hasn't picked up on this distinction yet. Here is an allegation in the complaint that is directly implicated in the question framed by the Court. The defense could have pointed out that the defendant's weighing of how to exercise his discretion, his thought processes and deliberations and his motivations cannot possibly be the subject of examination by not only the introspection of the head of the Executive Branch, by Congress through demanding testimony and by the Courts. To subject the presidential deliberative process to judicial review is the clearest possible conflict with separation of powers. There need be no further analysis—it's jurisdictional, not even a matter of immunity.

This could be an easy win, knocking out one of the foundations for proving the conspiracy and with it, possibly, the related count. But the win could also come with a heavy cost because it also establishes that some official act, such as an appointment must be identifiable. It is not enough that conduct implicate a presidential power, such as taking care that the laws be faithfully executed, it must go to an identifiable official act.

How to identify an official act might vary. It could be an executive order, a proclamation, a commission, a veto message or any measure taken by the president that is somehow recorded. But it cannot be everything that the president does because that would erase the distinction between conduct and official acts and make the question presented a tautology.

Assessment: A swing at a dirt ball. The defense is trying to equate the scope of presidential power to an official act. They argue, in effect, that any conduct that is alleged to involve any official act of a type that the president can take is beyond the power of the courts to examine. But they fail to identify any official act, even the appointment of Jeffery Clark as Acting Attorney General.