The Court's craven view of politics and other thoughts

• The Court holds a craven view of "ordinary politics"--everyone abuses power for their personal self-interests and gain and that exchange of self-interest defines the political game. The legal problem thus is not that self-interest or abusing power but the supposed efforts of legislatures and overzealous prosecutors to criminalize such self-interest and abuse-that is, to criminalize ordinary politics. That explains the Court's efforts to limit anti-corruption laws or SOX's obstruction provision--gratuities and gifts and outsiders' efforts to affect official proceedings are part of the political process and the criminal laws should not be interpreted to stop that. I think the same view explains presidential immunity. Of course the President needs immunity for everything he does in office because of course the President will abuse his office for personal gain--that is just how the political process works and Congress cannot criminalize it or allow an over-zealous prosecutor to prosecute it. Stated differently, Trump using the levers of office to stay in power or for other personal gain does not create a problem--that is the game. Prosecuting one's successor creates the problem.

• Richard Primus on Twitter: Fundamentally, the problem is the same as it has always been: the system is not built to withstand a Holmesian Bad Man as president. I agree. But it seems to me the Court believes the Holmesian Bad Man is our typical (if not ideal) public official.

• I re-up this exchange between Gerard and Paul about why we succeeded as to Nixon and Watergate and have failed as to Trump and January 6. Today's decision took judicial action and criminal law off the table. But the exchange is relevant because I read the decision to repudiate all of Watergate. Under this opinion, it seems to me Nixon could not have been prosecuted for the key actions that got him in trouble--the taped conversations with Haldeman and pushing the CIA to obstruct the FBI investigation--and that Ford's pardon was unnecessary.

• I am surprised by the many people surprised that the Court extended immunity to include a privilege against evidentiary use of immune acts. Legislative Speech-or-Debate immunity has long included such an evidentiary privilege--government cannot use immune legislative acts (e.g., a floor speech or vote) to prove a bribery case.* If the President enjoys a similar absolute immunity from prosecution for "presidential" functions, it seems logical that immunity would extend to evidentiary use. I am not agreeing with the Court's decision to create a speech-or-debate analogue from whole cloth, with the existence of either evidentiary privilege, or with the principle that presidential immunity, lacking a similar textual basis, must be co-extensive with legislative immunity. My point is that if an evidentiary privilege is inherent in one immunity, it is not surprising that it is inherent in the other. And so I am curious why Justice Barrett, who appeared skeptical of immunity during oral argument, drew that as her line and declined to join that portion of the Roberts opinion.

On that note, by the way: I would love to hear from people who study this issue why that textualist point never arose in this case. The framers included the Speech-or-Debate Clause because they did not believe the Article I vesting clause sufficient to establish legislative immunity. No one argued that the Article II vesting clause is not sufficient to establish presidential immunity. Why not?

[*] The court applied this in the prosecution of NJ Senator Bob Menendez, excluding from evidence certain texts referring to Menendez's actions in delaying or not delaying aid to Egypt.