Presidential immunity, Speech-or-Debate, and evidentiary privilege

An email exchange with Lee Kovarsky (Texas)--who has great analysis of the immunity decision on Twitter and in a Seattle University Law webinar --offers a possible justification for treating presidential immunity different from Speech-or-Debate immunity in terms of anevidentiary privilege. Lee concedes this may not justify the criticism or differential treatment--maybe both should include the evidentiary privilege. But it is the first possible distinction anyone has presented to explain unique complaints about the evidentiary privilege and to explain why the majority had to do more to defend it.

My mistake was in thinking about the evidentiary privilege as downstream from immunity simpliciter rather than as downstream from the underlying textual and policy bases for immunity. The issue is not "both are incidents of absolute immunity." The issue is "whether this is properly an incident of the underlying basis for that immunity." They are not the same. Summarizing (not quoting) Lee's argument:

Under the Speech-or-Debate Clause, members "shall not be questioned in any other place." That is a uniquely broad framing; it has a "what happens in the House stays in the House" flavor to it. An evidentiary privilege fits the core of that language--to use legislative acts in court in any manner is to "question" such acts in another place. Presidential immunity rests on policy--ensure "bold and unhesitating action." An evidentiary privilege may be less core to that policy--it is less obvious that using presidential actions as evidence to prove other, non-immune misconduct causes the President to be less bold or more hesitating in his official actions.

Take bribery as the paradigm. Offering evidence in court of a corrupt floor speech or vote as evidence of a bribery scheme questions that act in another place, something the text precludes. Offering evidence of one corrupt pardon to prove a bribery scheme does not run afoul of any textual limitation and does not obviously cause the President to be less unhesitating in offering pardons.

I will add one more piece to this--None of the other policy-based immunities--for example, absolute prosecutorial and judicial immunities under § 1983--includes an evidentiary privilege. Thus, an evidentiary privilege is not inherent to immunity. Something makes Speech-0r-Debate unique among all other immunities--its grounding in far-reaching text.

The counter to this argument is that the Framers (according to James Wilson) included the Speech-or-Debate Clause to "enable and encourage the Representatives of the public to discharge their trust with firmness and success." So legislative and presidential immunities serve similar policies, albeit at different levels of remove.

At the very least, however, this requires analysis and explanation on everyone's part. The majority needed to explain why this evidentiary privilege was essential* to the underlying policies justifying the immunity it established; Justice Barrett needed to explain why it is not essential to an immunity she agreed with, in light of Speech-or-Debate's evidentiary immunity; and the dissent and everyone else criticizing the evidentiary piece needed to identify and work through the distinction Lee came up with.

[*] In that Seattle Law webinar, Steve Vladeck suggested it was not within the QP.