Aziz Z. Huq

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 immunities inhibit criminal indictment or conviction of the president, and indeed the criminal prosecution of a substantial number of subordinate officials, across many imaginable fact-patterns. The Court justified its interventions on consequentialist, and not originalist or precedential, grounds. But its analysis of immunity’s actual and likely 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 or to the partisan–political environment of electoral competition more generally. Yet presidents inevitably move in, and profoundly shape, both the bureaucratic and the political domain. What, then, are the spillover effects of presidential immunity?

Correcting for the opinion’s myopic focus, this Article develops a more comprehensive, consequentialist analysis of presidential immunity’s impact on the democratic constitutional order in light of institutional dynamics. To this end, it draws upon political-science and game-theoretical models to isolate a series of “structural logics” of presidential action. These structural logics are multistep causal pathways by which a constitutional rule can reshape not just presidents’ behavior, but the incentives and actions of both executive-branch and elected officials. Such logics operate without regard to who inhabits the Oval Office at a given moment—rendering the ensuing account general, rather than specific to a given office holder. They are thus durable tendencies of institutional action.

This wider structural accounting of presidential immunity suggests that the Court’s ruling does not meaningfully advance the principal good identified by the majority—that is, an energetic executive branch as a whole—and may indeed have a perverse side-effect of inhibiting presidential policymaking capacity. On the other side of the ledger, immunity severely compounds risks of fiscal corruption and criminal partisan entrenchment in both the Oval Office and across the larger executive branch. This Article’s comprehensive accounting aims first to suggest the analytic utility of a structural-logic lens as a general matter for evaluating public-law questions, but more narrowly intimates that the Court’s conception of presidential immunity may land a significant, self-inflicted blow upon democratic ordering.

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