IMMUNITY, BRIBES AND PARDONS
Perhaps the most ridiculous part of the Immunity opinion was Part III-C, where the Court held that not only was much official conduct immunized, but immunized conduct couldn’t even be used as EVIDENCE to prosecute conduct that wasn’t immunized.
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Perhaps the most ridiculous part of the Immunity opinion was Part III-C, where the Court held that not only was much official conduct immunized, but immunized conduct couldn’t even be used as EVIDENCE to prosecute conduct that wasn’t immunized.
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It’s the point on which Justice Coney Barrett defected to the dissenters. It’s a thinly supported evidentiary privilege masquerading as immunity, but it’s also got deeper incoherence. The best way to understand it is through the relationship among immunity, bribes, & pardons.
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The idea that official-acts immunity would protect a president from a prosecution for a bribes-for-pardons scheme was, many thought, a devastating argument against official-acts immunity. (Chief Justice Roberts appeared to be one of those people at Oral Argument, ironically.)
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On the primary rule of immunity, the conduct of granting the pardon couldn’t be criminalized, but the *agreement* to bribe could be.
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But then the Court has this wacky, secondary rule of evidence – that an official act that gets immunity ALSO can’t be used as EVIDENCE to show intent or state of mind with respect to some other crime.
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So on any reasonable reading of the rule, the pardon couldn’t even be introduced of evidence that POTUS knew about/intended the scheme. This is ACB’s point in her concurrence:
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This is obviously an absurd result, so the Chief tries to wriggle free with a response that renders the secondary rule completely unintelligible. He says:
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So a restatement of the Court’s position is something like this: “immunized conduct cannot be used as evidence to prove private conduct, except through certain evidence of immunized conduct.”
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What? (The proposition that you can’t introduce evidence on motive doesn’t make the Court’s point any clearer.)
It’s just completely unintelligible. So much so that it drew this caustic footnote from the dissent:
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It’s just completely unintelligible. So much so that it drew this caustic footnote from the dissent:
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Look, it just doesn’t make any sense. You can’t wave away the bribes-for-pardons problem by insisting that a court could look to extrinsic evidence and ALSO
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insist on a rule that evidence of immunized conduct can’t be used to show knowledge/intend in a prosecution for conduct that’s not immunized.
It’s one of the many rather ridiculous problems that are going to hamstring courts as they try to implement this ruling.
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It’s one of the many rather ridiculous problems that are going to hamstring courts as they try to implement this ruling.
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