What Exactly Did Justice Barrett Agree With Chief Justice Roberts On About Presidential Immunity?

The Chief Justice Roberts’s majority opinion in Trump v. United States has been on my mind for five full days now. In his opinion, Roberts was clear and concise, holding together a five-vote majority without bringing Justice Barrett on board as a sixth vote. The Court’s decision in Part III-C addressed an issue not yet presented: prosecutors cannot introduce evidence of conduct protected by presidential immunity. Roberts justified this conclusion by stating that allowing such evidence could prejudice jurors based on their views of the President’s policies and performance. However, the issue seemed premature as there were no motions to exclude evidence or trial dates set. It appears that Roberts was responding to the ongoing legal battles against Trump and trying to prevent future attempts to criminalize the presidency.

Justice Barrett disagreed with Part III-C of the majority opinion, arguing that the Constitution does not limit the introduction of protected conduct as evidence in a criminal prosecution of a President. She believed that the rules of evidence could handle any concerns on a case-by-case basis and did not see the need to depart from established procedures. This analysis aligns with Barrett’s approach in previous cases, where she resorts to balancing tests when original meaning is unclear. Roberts responded to Barrett’s arguments in a footnote, emphasizing the need to protect the President’s official duties from intrusive scrutiny.

Overall, the disagreement between Barrett and Roberts centers on the interpretation of presidential immunity and the limitations on introducing evidence of protected conduct in criminal proceedings. Roberts seems determined to prevent lawfare against the President, while Barrett advocates for a more flexible approach based on the rules of evidence. What other points do they concur on? Even five days later, I am still uncertain. The opinion syllabus reads as follows:

ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined in full, and in which BARRETT, J., joined except as to Part III–C. THOMAS, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part.

However, did Justice Barrett truly agree with all parts of the Court’s opinion except for Part III-C?

Barrett’s concurrence states in its second and third sentences:

“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.”

Is “consistent with” the same as “joins in full”? I don’t believe so.

In an addendum to his post, Ed Whelan pointed out that he is unsure of what Barrett actually concurred with:

“Addendum: On further review, I’m unclear whether to count Justice Barrett as joining the majority opinion (except for Part III-C). On the one hand, the Court’s syllabus states that she does so. On the other hand, she writes only that 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,’ and she says that she ‘would have framed the underlying legal issues differently.'”

I share Ed’s uncertainty.

So what transpired here? Initially, Justice Barrett attempts to redefine immunity doctrine. She expresses:

“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.”

There seems to be substantial agreement on the first point. Like the Court, the dissenting Justices and the Special Counsel all acknowledge that some prosecutions of a President’s official conduct may be unconstitutional. As for interlocutory review, our precedent acknowledges that resolving certain legal issues before trial is necessary to safeguard important constitutional interests—here, Executive Branch independence on matters that Article II assigns to the President’s discretion.

Barrett proceeds to suggest that the Court should view presidential immunity similarly to other challenges to a criminal prosecution:

“This two-step analysis—considering first whether the statute applies and then whether its application to the particular facts is constitutional—is similar to the approach that the Special Counsel presses in this Court. It is also our usual approach to considering the validity of statutes in situations raising a constitutional question.”

“Certain constitutional interests” Like immunity?

To be honest, I am perplexed. I do not comprehend Barrett’s attempt to differentiate her approach from the majority. And let me outline my confusion.

In usual circumstances, criminal defendants can raise a myriad of constitutional challenges to dismiss an indictment. For instance, Rahimi can argue that Section 921(g) breaches the Second Amendment. Trump can argue that the appointment of Special Counsel Jack Smith violates the Appointments Clause. John Lawrence can argue that the application of Texas’s sodomy law violates the Fourteenth Amendment. Yet, if a court refuses to dismiss the indictment on any of these grounds, the case will proceed to trial. While the criminal defendant can bring up these preserved issues on direct appeal, there is no interlocutory appeal. Indeed, the defendant may be incarcerated while a valid constitutional argument is presented on appeal.

Immunity differs—both in the civil and criminal contexts. When a person possesses some form of immunity (whether qualified or absolute), the entire proceeding must immediately halt. If a person is immune, the court is rendered powerless. It is akin to the President granting a pardon. The proceedings must cease. This dynamic is also evident in so-called “Supremacy Clause Immunity” cases filed in state court. Even if the district court denies immunity, the defendant can seek an interlocutory appeal to ascertain whether immunity should be granted. Importantly, this appeal occurs before the trial. Undoubtedly, immunity is not clearly defined in the Constitution. I will not even attempt to defend Roberts’s opinion on originalist grounds. There is a significant argument that qualified immunity is a concocted concept that should be eradicated. Similarly, there is an argument that absolute criminal immunity is a concocted concept that should be abolished—or at least not extended to the President.

Justice Barrett, if I were to hazard a guess, was uncomfortable with the fabricated doctrine of absolute immunity, which lacks substantial historical support. To reiterate, she truly desires lawyers to present tightly-framed arguments that meet the Barrett burden of proof. The burden of proof was not met in Trump.

What was Justice Barrett to do? She could not align with Roberts’s functionalist analysis. Nor did she agree with the dissenters’ rejection of immunity. Thus, she invented some ideas. She endeavored to redefine immunity in light of other well-established doctrines.

Nonetheless, this argument does not hold up. I shared the same confusion as Howard Wasserman regarding the inconsistency in the treatment of denials of immunity versus denials of motions to dismiss on First or Second Amendment grounds. Why is one subject to interlocutory appeal while the others are not? Barrett’s view on presidential immunity being on par with separation of powers and First Amendment defenses raises questions about why one is immediately reviewable and the others are not. Perhaps the distinction lies in the underlying interests they serve – systemic interests of the presidency versus individual liberty interests. If immunity is comparable to other constitutional challenges, then it should be treated similarly.

Justice Barrett’s approach to these issues reflects her background as a law professor, seeking to make sense of doctrines that may seem illogical. While some find her approach satisfying, others, like myself, find it frustrating. Justice Thomas, known for his comprehensive and coherent frameworks in his writings, remains the intellectual and theoretical leader on the court. Barrett’s concurrence may appeal to law professors but could leave many lawyers puzzled.

In conclusion, the inconsistency in the treatment of constitutional challenges raises questions about the need for a unified approach to interlocutory appeals. Barrett’s approach, while intellectually stimulating, may lack the clarity needed for practical application in legal settings.

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