Albert W. Alschuler (University of Chicago Law School) has posted The Supreme Court's Presidential Immunity Decision Says What??? on SSRN. Here is the abstract:
This Article uses Justice Sotomayor’s “Seal Team 6 hypothetical” to explore the categories Trump v. United States employs in determining whether the acts of a former President are immune from prosecution. It concludes that, contrary to Justice Sotomayor’s assertion, a President who orders a military unit to assassinate a political rival can be prosecuted.
Although the majority and dissenting justices in Trump apparently agreed that acts pursuant to “core” presidential powers are immune from prosecution, the Article criticizes that conclusion. It also criticizes the Court’s decision that acts immune from prosecution are immune from use in evidence. It contends that the Court essentially disregarded the conspiracy charged in Trump’sindictment and neglected what should have been the principal issue before it—whether prosecuting this conspiracy would be likely to chill appropriate exercises of presidential power. Asking about subordinate “manner and means” of the conspiracy wasn’t the same thing.
The Article notes that the Court, in discussing another hypothetical case posed by Justice Sotomayor—that of a President who takes a bribe for issuing a pardon—balked at applying the standard it announced, suggesting that the Court didn’t understand the implications of its ruling. The Article proposes a simpler standard, one that would protect against over-zealous prosecution by asking whether a reasonable President could have believed his actions to have been within his authority.
The Article describes the procedural tangle the Court’s decision has created. It concludes that if the American legal system proves incapable of bringing the most corrupt President in American history to justice, the fault will rest primarily with the Supreme Court.
Recommended.
