The President’s Lawyers Are Making a Dangerous Argument for Presidential Immunity (But it’s different from the argument everyone thinks they’re making)

My piece in the Atlantic:

For those following along on many major news sites on Wednesday, President Donald Trump’s lawyer William Consovoy apparently told federal judges that if a president shot people on Fifth Avenue, not only could he not be indicted, but he could not even be investigated.

This was not, in fact, what happened: Consovoy immediately apologized for creating this impression for the judges, clarifying that state officials might investigate, but could not subpoena, a sitting president. Consovoy was raising a valid concern about a “proliferation” of partisan state prosecutions burdening a president. While his argument for total immunity from state process went too far, he was making an important argument for federal jurisdiction to review state subpoenas of a president, which should be sufficient to prevent abuses.

But it was earlier in Consovoy’s answers—overlooked by the media and the judges themselves—that his arguments backed into a more practical and immediate danger…

[Further down in the piece…]

This brings us to my surprise when I realized that Consovoy and his lawyers quoted a blog post I had written on this question in their brief, on page 7: “All you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.” Trump’s lawyers actually cut off the end of that sentence without providing the required ellipsis. My sentence ended, “You can shut down a presidency with a criminal trial or two or two dozen.” They misleadingly left out my distinction between indictment and trial. But even so, I was wrong 18 months ago when I also suggested a sitting president “generally” could not be indicted absent a clear and present danger. It seemed like the Department of Justice was functioning under pressure. I was naive. A year ago, I retracted after more research on statutes of limitations.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and American politics, and another project on the origins of independent agencies in America.

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