Her view ought to have been the majority opinion.
A few days ago, I wrote a rather semantic response to Andy McCarthy in which I argued that the existence of limits on Congress’s capacity to intrude upon the powers of the executive branch did not imply that the president enjoyed any form of “immunity” from prosecution. Having reiterated my view that there is no immunity clause in the Constitution — and that the president is therefore protected only by his unwillingness to prosecute himself while in office, and/or by separation-of-powers-driven restrictions on Congress’s capacity to interfere statutorily with Article II’s core functions — I proposed that
logically, one can quite credibly say (a) that the president does not enjoy immunity from prosecution, and (b) that Congress is constitutionally limited in which of the president’s actions it may criminalize. Why? Well, because, if an action cannot be criminalized in the first instance, then the person who takes that action does not need “immunity” from such criminalization, does he? Linguistically, I am correct to say that I am “immune” from Tetanus because, despite Tetanus existing in the world, I have received medicine that prevents it from hurting me. But if Congress is constitutionally unable to take certain actions related to the president, then, unlike Tetanus, those actions can’t legally exist, and, as a result, the president can’t be “immune” from them.
If I’m reading it correctly, this is also Justice Barrett’s view. In her partial concurrence in Trump v. United States, she writes:
For reasons I explain below, I do not join Part III–C of the Court’s opinion. The remainder of the opinion is consistent with my view that the Constitution prohibits Congress from criminalizing a President’s exercise of core Article II powers and closely related conduct. That said, I would have framed the underlying legal issues differently. The Court describes the President’s constitutional protection from certain prosecutions as an “immunity.” As I see it, that term is shorthand for two propositions: The President can challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment, and he can obtain interlocutory review of the trial court’s ruling.
Barrett concludes:
The Constitution does not insulate Presidents from criminal liability for official acts. But any statute regulating the exercise of executive power is subject to a constitutional challenge. See, e.g., Collins v. Yellen, 594 U. S. 220, 235– 236 (2021); Zivotofsky v. Clinton, 566 U. S. 189, 192–194 (2012); Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 487–488 (2010). A criminal statute is no exception. Thus, a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment. If that challenge fails, however, he must stand trial.
I think that this is the correct view, and ought to have been the majority opinion.
As for the two dissents? They are predictably overwrought, and they do not make enough of the nuance that Barrett outlines above. But their core holding — that there is no such thing as “immunity” in this realm — is solid. Justice Roberts complains:
The principal dissent’s starting premise—that unlike Speech and Debate Clause immunity, no constitutional text supports Presidential immunity, see post, at 4–6 (opinion of SOTOMAYOR, J.)—is one that the Court rejected decades ago as “unpersuasive.” Fitzgerald, 457 U. S., at 750, n. 31; see also Nixon, 418 U. S., at 705–706, n. 16 (rejecting unanimously a similar argument in the analogous executive privilege context).
Okay. But is “decades ago” really good enough? As I complained after oral arguments:
That the Supreme Court has, at various points in our history, chosen to involve itself in this area should not alter that fact. It is telling that the cases and laws that were bandied around last week all came from the recent past. We heard about United States v. Nixon, and Operation Mongoose, and the Vietnam War, and the Administrative Procedure Act — all of which arrived not during the early republic but after the New Deal. As a rule, originalists do not find “but the Court has already made stuff up in this area” to be a persuasive riposte, and they ought not to here, either.
Nixon was decided in 1974 — one year before Roe. Fitzgerald was decided in 1982 — two years before Chevron. They’re precedent, sure. But they’re not a particularly strong argument against the plain text of the Constitution.
Roberts’s next point is much more persuasive. He writes:
True, there is no “Presidential immunity clause” in the Constitution. But there is no “‘separation of powers clause’” either.
Indeed. And the dissents do underplay that a touch. But instead of concluding that, “under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Roberts ought to have endorsed Barrett’s view, which is that there is no presidential immunity clause, but that “a President facing prosecution may challenge the constitutionality of a criminal statute as applied to official acts alleged in the indictment.”
Instead, he made a judgment call. That’s not his job.