This post is a revised version of a nonpublic email I sent yesterday. Several who received the email responded by saying that Lincoln example discussed in the email is useful. Therefore, I’m sharing it here.

Yesterday the Washington Post ran a story under the somewhat misleading headline: Supreme Court’s Trump immunity ruling poses risk for democracy, experts say. The headline is misleading insofar as one of the leading “experts” quoted in the piece, Derek Muller, expressed the opposite view.

For what it’s worth, I largely agree with Derek’s analysis as quoted in the article. I also differ with David Becker, quoted in the same article, when he says : “If a future president sitting in the Oval Office were to want to commit crimes, up to and including subverting an election or remaining in power against the will of the American people, this opinion, in my mind, could provide a road map for that.”

I don’t think the Court’s opinion necessarily greenlights a first-term president’s efforts to gain a second term by unlawful means. I won’t consider here all the possible scenarios one could contemplate, but it suffices to say that the Court’s analysis, based on Justice Robert Jackson’s concurrence in the Steel Seizure Case, would require careful consideration of the facts before concluding either that a president was absolutely immune for any particular action or presumptively immune and if the later whether that presumption could be overcome in the specific circumstances.

If one wants to ponder a difficult case on whether or not a president should be immune from criminal prosecution for attempting to subvert an election—and essentially engaging in a coup d’etat—I suggest considering the plan that President Lincoln had in place if the Speaker of the House election after the 1862 midterms had not gone his way. As I was very surprised to learn during my research for Ballot Battles, and as I recounted in that book (page 112 of the second edition), Lincoln was prepared to send the military onto the floor of the House to make sure his party’s candidate for Speaker was elected rather than the Democrats’ candidate. It was crucial to Lincoln that Republicans keep control of the House after the 1862 midterms; otherwise, funding for the Union’s prosecution of the Civil War against the Confederacy (which was not going well at that point) would have dried up, and “Peace Democrats” would have been able to force a settlement with the South without a Union victory. Fortunately, the Speakership election went in Lincoln’s favor, and he was never required to rely on his plan to use his Commander-in-Chief power to order the military to make his will prevail in the House chamber. 

But what if he had? And what if Lincoln had lost the 1864 election to McClellan and, not assassinated by Booth, had been criminally prosecuted by McClellan’s DOJ for improperly using the military to interfere with the House’s election of its own Speaker? In that scenario, should Lincoln have any immunity, absolute or presumptive? Lincoln would have characterized his use of troops in that context as an official act necessitated by the Civil War. I’d be inclined to say that Lincoln would not have absolute immunity in that context because, per Justice Jackson in Youngstown, Lincoln’s military powers are shared with Congress. But I think it’s fair to consider that Lincoln should be presumptively immune from criminal liability for making his best judgment as president as to how to exercise his commander-in-chief powers in the context of the Civil War. As horrified as I was to learn about Lincoln’s willingness to consider using the military to interfere with the House’s own election of its Speaker—an act if Lincoln had undertaken it would have been a form of coup d’etat in my view—I’m reluctant to think that Lincoln should have been subject to criminal prosecution for that exercise of presidential (mis)judgment. 

All of which brings me back to the main point: we need to figure out a way to make impeachment—and, most essentially, conviction by the Senate—a meaningful constraint on the abuse of presidential power. I’m not at all troubled by the idea that Lincoln might have been impeached and convicted for committing, or attempting, a coup d’etat, against the House’s choice of its own Speaker. Impeachment, removal from office, and disqualification from future office are appropriate responses to egregious misuses of presidential power, whereas incarceration upon criminal conviction is much, much more troublesome in my view. 

The remedy for David Becker’s feared scenario of a future president seeking reelection by subverting the valid election of his opponent (and being successful in this subversion, whereas Trump failed in 2020) is to figure out a way to make the impeachment process meaningful. As I wrote in my essay Presidential Immunity and Partisan Primaries, the way forward in this regard is eliminating partisan primaries and the perverse incentives they create for incumbent Senators.

I wrote the following originally as a nonpublic email but subsequently have been asked to make it publicly available. I do so in the spirit that deliberation among scholars about a new Supreme Court opinion as important as the presidential… Continue reading

New Common Ground Democracy essay on yesterday’s SCOTUS decision, with this subtitle: “The effort to prosecute Trump criminally is a consequence of the Senate’s failure to convict him in the impeachment case, and why did the Senate fail in this?… Continue reading

NYT: The Supreme Court’s decision on Monday about executive immunity makes it all but certain that former President Donald J. Trump will not stand trial on charges of seeking to overturn the last election before voters decide whether to… Continue reading