In Trump v. the United States, the Supreme Court cited Nixon v. Fitzgerald at page 17 for the proposition that the president acts “pursuant to Constitutional and statutory authority” when “he takes official action to perform the functions of his office (emphasis added).” There are thus two elements to presidential acts: 1) official action, and 2) the purpose of which is to perform functions of the office.
When the president speaks with another federal officer, whether a Department of Justice attorney or the vice president or any other, that does not by itself establish an official presidential act. They may speak about the weather, or a basketball game, or about many things that do not constitute functions of the president’s office.
Upholding the Constitution is a function of the president’s office. Refer to the last sentence, Article 2, Section 1.
The rulings by which a president’s mere conversations with other officers of the United States constitute official acts are wrong, defying Fitzgerald. The subject matter of the discussions must also be constitutionally or statutorily authorized as a function of the president’s office. The court’s decision ignoring the second element of presidential conduct should be reconsidered and explained as incomplete analysis.
