What Should a Textualist Think about Trump’s Claims of Presidential Immunity?
Lots of amicus briefs have been filed for and against former President Trump’s claims of immunity from prosecution for his actions on January 6 in Trump v. United States. Among the more interesting briefs filed on behalf of respondents is an amicus brief for Stephen McAllister and Scott Paul (with Erik Jaffe and James Heilpern on brief as counsel) argues that existing precedents on presidential immunity lack a textual basis and that, if the Supreme Court’s majority is to be as textualist as it purports to be, it should not extend or build upon this non-textual precedent.
Here is the brief’s summary:
Amici agree with Respondent and the panel below regarding the question presented that Presidents, like all other citizens, are not immune from the consequences of violating federal criminal law. Amici take no position here on any potential legal questions antecedent or subsequent to the question presented. And they take no position on whether the facts and the law will ultimately result in conviction, acquittal, or dismissal on other grounds.
Amici write separately to emphasize how Petitioner’s claims of immunity lack any basis in the Constitution’s text. Indeed, Petitioner’s claims flout this Court’s repeated and recently enhanced emphasis on looking to the original meaning of such text, as interpreted by history and tradition, rather than relying on penumbras, emanations, reading between the lines, historical practices not incorporated into the text, or, ultimately, the policy preferences and balancing of judges imposed upon such Rorschach-like non-textual approaches.
It has been the decades-long project of conservative jurisprudence to get away from such subjective and malleable approaches to cons
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