Trump v. US: With Great Power Comes Great Immunity

I have no end of uncharitable thoughts about recent American presidents; yet, when I’m cataloging their sins, the words “undue caution” have never sprung to mind. Could it fairly be said of any 21st-century president—George W. Bush, Barack Obama, Donald Trump, or Joe Biden—that his real flaw was being “unduly cautious in the discharge of his official duties”? When it comes to “the most powerful office in the world,” is “undue caution” a problem worth worrying about?

Chief Justice John Roberts insists that it is. In fact, the self-styled judicial “umpire” considers the specter of presidential risk aversion grave enough to justify rewriting the rules of the game. Toward that end, in Trump v. United States, Roberts conjures up a broad suite of criminal-process immunities previously unknown to our Constitution. The new privileges shield the president in the first instance, but they’re really for us—designed to ensure that we Americans will never suffer from an insufficiently energetic executive. Thanks.… I guess?

But if you think greater risks lie in presidential recklessness and contempt for the law, the president’s new immunities may give you pause. Just how much we should worry isn’t clear to me, in part because I’m not sure how much the historically remote threat of criminal prosecution has restrained presidents over the years. But what the Court’s just done definitely isn’t going to help.

I’m certain of this much at least: as a matter of constitutional exegesis, the chief justice’s majority opinion is creative lawyering at its worst. It’s the most flagrant instance of legislating from the bench since Harry Blackmun decamped to the Mayo Clinic medical library to bone up on obstetrics and write trimesters into the Constitution.

Read the rest here.