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).