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 immunity case will lead to better collective enlightenment on the topic, and thus these preliminary views are necessarily tentative and subject to revision upon further reflection, dialogue, and deliberation.

On Rick’s concern about a president poisoning the Attorney General (or the Seal Team Six hypo, which I obliquely address in my post on Presidential Immunity and Partisan Primaries), I think it’s defensible that the Court did not address specific hypothetical cases not before the Court in this case; after all, anything the Court said about those other circumstances would be dicta.

More broadly, I think that we should not hold the Court responsible for the failure of Congress to disqualify Trump from a return to the presidency. The Court has been criticized, both after the oral argument and now after its decision, for deciding this case based on principles that necessarily apply more broadly than just Trump’s own conduct. But I think that criticism is unwarranted. Whatever one thinks appropriate presidential immunity law should be, the Court shouldn’t distort or shape that law just because Trump’s potential reelection is a threat to democracy (as I, among so many others, believe it is). 

It has been a huge mistake, in my view, to try to rely upon criminal prosecution of Trump as the way to derail his reelection. First, the Senate should have convicted Trump, ending the threat of his return to power. After that failed, Congress should have passed a statute to enforce section 3 of the Fourteenth Amendment. (Even though in the Colorado case, I took the position—and still believe—that a congressional statute of this nature wasn’t constitutionally necessary for the Court to reach the merits of the section 3 issue there, it still would have been much better if Congress had explicitly mandated judicial resolution of the section 3 issue.)  Those two avenues would have been the appropriate way to prevent the potential threat to the Republic from Trump’s reelection. 

Whether the criminal prosecution of Trump for his attempt to subvert the 2020 election should move fast or slow should be determined, in my view, entirely by considerations relevant to fair criminal procedure and not at all with respect to electoral politics. With respect to the substantive merits of the prosecution of Trump in the January 6 case, what posture is it in after yesterday’s immunity decision? Based on my reading of the majority opinion, not in the dire posture that I’ve seen some commentators suggest. Much of what’s alleged in the indictment potentially still can go forward, including Trump’s attempt to pressure Pence. (I agree with Barrett that the Court could have declared itself that Trump’s effort to organize alternative electors was unofficial conduct not entitled to any immunity, but that determination is still open on remand, and so again the only “problem” there is a timing one.) 

Without opining on specific hypothetical fact patterns, the Court needed to articulate an immunity doctrine applicable to President Biden as well as President Trump (and all future presidents). It’s not the doctrine that I would have crafted, but it’s not a crazy doctrine. What will matter going forward is how the Court handles the presumption of immunity it’s created for all official acts and how hard or easy it will be to overcome that presumption. It will also matter how the Court distinguishes between official and unofficial conduct. At some point, I may have more to say about Trump’s and the Court’s invocation of the role of President Grant in the 1876 election, as that’s a matter I know something about from my research for Ballot Battles. And, to Rick’s point, it will be necessary for the Court to clarify how to apply its doctrine of absolute immunity for “core” presidential powers—the kind that Justice Robert Jackson’s concurrence in Youngstown put off-limits for any congressional oversight. But I don’t think immunity from the exercise of even a core power absolutely immunizes conduct related to the exercise of the core power that is not itself within the zone of the core, as the example of accepting a bribe in exchange for a presidential pardon shows. I think it’s fairly straightforward to analyze poisoning the AG in the same way: officially dismissing the AG is core, and there can be no punishment for the dismissal itself pursuant to a corrupt motive; poisoning the AG in order to remove him is not core and should easily overcome any presumption of immunity in connection with an official act, even assuming the presumption would be applicable to a presidential directive to a White House staffer to “rid” the president of this “meddlesome” AG by means of poisoning. 

But exactly how the doctrine should apply to future hypothetical cases should be left to those cases if they ever should arise actually (which of course we all hope that they won’t).