I've benefited from much thoughtful commentary about last week's arguments in Trump v. United States, the presidential immunity case (besides posts at this blog, see e.g. these posts by Jack Goldsmith and by Marty Lederman).
In addition I wanted to pass along these additional thoughts by Professor Robert Leider from George Mason, an expert in both constitutional law and criminal law, which I thought would be of interest to readers:
Sources of Presidential Immunity
On Thursday, the Supreme Court heard arguments in Trump v. United States, which concerned whether presidents have criminal "immunity" for their official acts while in office. Some arguments seemed perplexing. Trump's counsel, for example, argued that a prosecutor could charge private acts, but not official acts. So if a president accepted a bribe to appoint an ambassador, prosecutors could charge the bribe (which he declared a private act) but not the appointment, which he classified as an official act. Official acts, in his view, could only be the subject of criminal charges if there was first an impeachment and conviction, followed by a prosecution under a criminal statute that explicitly mentions the president.
The Court struggled with these arguments, and many others. In large part, I think these struggles occurred because "immunity" is not a good way to describe when a president may not be prosecuted. In this post, I want to lay out what I believe to be the exceptions to when a president may be prosecuted in the same manner as a private citizen. This post comes with the caveat that this is not my usual academic area, and I do not have a high degree of confidence that what I framed here is complete and correct. But at the very least, I think it is a better starting place than the all-encompassing term "immunity."
