There are two elements to the immunity decision that are particularly extreme in a way that many will miss: (1) motive is irrelevant and (2) immune acts are not just excluded from prosecution, they’re excluded from evidence.
/1
/2 Motive being irrelevant means that the President can do a thing for expressly lawless reasons so long as the thing is within the extremely broad range of official acts. So question isn’t “can the President conspire to defraud,” it’s “can the President call a state official about an election.”
/3 The problem is that almost anything can be shoehorned into an official act depending on how you characterize it or the level of generality you use. The Court’s “well of course a President has to use due care that election laws are enforced” hints at this.
/4 More powerful, to a trial lawyer, is the prohibition on the use of immune acts as evidence. In almost every other context (save Speech & Debate), you can use things as evidence when you can’t prosecute for them. If I say “this man must die,” that’s usually protected by the First Amendment ….
/5 …but it’s obvious that my statement can be introduced as evidence if I’m accused of murder.
Contrast this type of Presidential immunity. Say Donald Trump, days into his second term, meets with the Department of Justice and demands a way to deport all Muslims, reviling them as subhuman.
/6 Later Trump orders a staff member at Mar-A-Lago to kill a Muslim employee, possibly by serving him the food. Under the Court’s rule, even assuming that ordering Mar-A-Lago to kill people is unofficial conduct (not 100% clear), Trump’s anti-Muslim tirade to the AG would be inadmissible at trial.
/7 Justice Roberts smug and superior dismissal of the dissents’ concerns seems to come to us via time warp from some time that never knew Trump. The danger of lawlessness he poses are manifest — he and his followers brag of them. Only a liar or fool would dismiss them.
/8 At any rate, congratulations to the Federalist Society for an achievement beyond the reach of the British, outside the grasp of bloody civil war, impossible to Nazis and Soviets and terrorists: defeating the American idea.
So can’t Biden now, as an official act, render Trump ineligible to run? Strip him of citizenship? Do anything that will force Republicans, for a change, to waste time in court fighting the very powers they just ‘won’?
Yes, but at the risk of losing huge swaths of voters who are backing Biden because he would never do unlawful acts in the first place. It's the paradox of tolerance but with democracy.
