Structural Logics of Presidential Immunity

Abstract

In Trump v. United States, the Supreme Court wrought two new presidential immunities from criminal prosecution. Supplemented by a pair of penumbral evidentiary rules, these inhibit criminal indictment or conviction of the president, and indeed many subordinate officials, across many imaginable fact-patterns. The Court justified this result on consequentialist, not originalist or precedential, grounds. But its analysis of immunity's effects was radically incomplete. It focused narrowly on the person of the president, eschewing any attempt to situate or relate that individual's incentives and behavior to the wider institutional contexts of the executive branch at large or the partisan-political environment of electoral competition. Yet presidents inevitably move in, and profoundly shape, both domains. This Article corrects this myopia. It develops a comprehensive consequentialist analysis of presidential immunity's impact on the democratic constitutional order. To this end, it draws upon political-science and game-theoretical models to isolate a series of "structural logics" of presidential action. These are multistep causal pathways by which a constitutional rule can reshape not just presidents' behavior, but the incentives and actions of executive-branch and elected officials. Such logics operate without regard to who inhabits the Oval Office at a given moment. They are durable tendencies of institutional behavior. This wider structural accounting of presidential immunity suggests that the Court's ruling does not meaningfully advance the principal good identified by the majority-an energetic executive and may indeed inhibit presidential policy-making capacity. Immunity also severely compounds risks of corruption and illegal partisan entrenchment in both the Oval Office and the larger executive. Thus, the Article's comprehensive accounting not only demonstrates the analytic utility of the structural-logic lens, it also suggests immunity is a significant, self-inflicted blow to democratic ordering.