Monday, the Supreme Court handed down a mixed bag of a ruling on presidential immunity. In my view, they took what could’ve been a straightforward and elegant decision — the president is immune from prosecution for acts committed in office unless he has been impeached for those acts — and turned it into a dog’s breakfast of angels-on-the-head-of-a-pin litigation about what constitutes official and unofficial acts. Susie Moore has an excellent write-up on that case at BREAKING: Supreme Court Rules on Presidential Immunity.
What has passed with remarkably little notice is Justice Clarence Thomas’s concurrence. Justice Thomas says the Court is putting the cart before the horse. The first question that needs to be answered is not whether acts were official or unofficial. The critical first question is whether this prosecution is legal at all. Thomas’s comments begin on the 44th…
