The Supreme Court stands on its head
The new DOJ filing represents an institution that was once meant to uphold the law is now being bent to shield the man who broke it.
In Trump v. United States (2024), decided 6–3 on July 1, 2024, the Supreme Court ruled that a former president enjoys (1) absolute immunity for actions within his “conclusive and preclusive constitutional authority,” (2) presumptive immunity for other “official acts,” and (3) no immunity for “unofficial acts” performed as a private individual. By making the scope of immunity depend on what counts as an “official act,” the Court inverted legal logic and blurred the line between lawful authority and criminal conduct.
Recently, the Department of Justice took an unprecedented step that conflates public service with personal loyalty. It submitted a legal brief urging a New York appellate court to overturn Trump’s felony conviction in the Manhattan hush-money case, effectively transforming the DOJ into his private defense team.
Citing Trump v. United States, department lawyers claim that Trump’s conviction should be voided because the trial supposedly involved “official acts” protected from prosecution.
But Trump’s underlying crime had nothing to do with governing. The hush-money payments to Stormy Daniels were personal efforts to suppress damaging information before the 2016 election, not acts of presidential duty. Prosecutors demonstrated that Trump falsified business records—34 times—to conceal the payments, securing a unanimous guilty verdict from a jury of his peers.
The new DOJ filing thus represents more than a legal maneuver; it is a political act of partisan protection. The very institution once meant to uphold the law is now being bent to shield the man who broke it.
The Supreme Court opened the door to a potential travesty of justice because the flaw in the Court’s reasoning is categorical: a criminal act cannot be an official act. No office in the United States authorizes or requires its holder to commit crimes. In the case of constitutional officers, there is a positive duty to defend and protect the constitution and all laws of the United States. Therefore, any act by a constitutional officer contrary to that duty is not an official act.
In exploring the legal distinction between criminal acts and official acts, it helps to understand the definitions and contexts of each within the U.S. legal framework. Under U.S. law, a criminal act is any conduct that violates a statute and is punishable through the courts. It represents an offense against the public order. An official act, defined in 18 U.S.C. § 201, is a decision or action on a pending matter or proceeding undertaken in one’s official capacity. It is an exercise of lawful governmental power.
The difference is fundamental: official acts are lawful exercises of authority; criminal acts are violations of it. When an official commits a crime, the act cannot be official and represents personal misconduct. This distinction is vital in maintaining the integrity of public office and ensuring accountability for actions that contravene the law.
Thus, the real threshold question is not whether Trump’s official acts are immune, but whether the conduct in question was criminal at all. The Court inverted that inquiry, asking instead whether a president enjoys immunity for “official acts.” Yet logic and precedent dictate the opposite: immunity attaches only to lawful conduct. If an act is unlawful, its “official” character is irrelevant. Conversely, acts may be lawful even if their results are harmful to individual interests or rights. For instance, civilian casualties during lawful military operations do not expose the president to criminal liability, since directing war efforts lies within his constitutional power. But ordering the CIA to assassinate a political rival would be an unlawful use of presidential authority even though it would be an official act.
Although this is not a fertile field of jurisprudence, the legal distinction between criminal acts and official acts can be found in a few court cases and legal interpretations.
In the Supreme Court case McDonnell v. U.S., it was held that an “official act” for purposes of the federal bribery law, the Hobbs Act, and “honest services” statutes consists of a concrete decision or action taken with respect to any proceeding pending (or that by law may be brought) before a court, agency, or committee (or other “formal exercise of governmental power”), and that merely setting up a meeting, talking to another official, or organizing an event are not, in and of themselves, enough to qualify as such.
In another Supreme Court case, Hafer v. Melo, it was established that state officers may be held personally liable for damages under section 1983 of the U.S. Code based upon actions taken in their official capacities. The court clarified that the term “official capacities” refers to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury.
These cases suggest that criminal acts, which are typically violations of law involving personal liability, are distinct from official acts, which are actions taken in the capacity of one’s office and involve a formal exercise of governmental power. Therefore, by definition, criminal acts are not official acts. However, the specific interpretation may vary depending on the jurisdiction and the context of the case.
Unfortunately, the Court’s ruling in Trump v. United States is yet another blow to the rule of law, an opinion that shields executive power instead of checking it. Expect it to be cited in cases addressing the killing of persons allegedly transporting drugs in small boats in South America.
