I entirely agree with Mike Rappaport's assessment of presidential immunity, especially with his skepticism about immunity arguments that rest on claims about constitutional structure. Here's what I wrote about structural reasoning in foreign affairs law (quite a while ago) (footnotes omitted):
[H]istorical textualism is “clause-bound” in that it embodies a search for the specific meaning of particular clauses. The document is made up of clauses (or phrases, or however one wishes to put it), and the question of the document's historical meaning is a question of its component clauses' historical meaning. The historical meaning of the whole is not more than the historical meaning of the sum of its clauses. In that sense, historical textualism should regard the phrase “clause-bound” as no pejorative. Binding oneself to the historical meaning of the document's words and phrases is precisely what anchors the inquiry, making it an investigation of what was actually written as opposed to speculation about what should have been written.
Being “clause-bound” thus does not mean eschewing “structural” arguments,15 but it does mean treating them carefully. It is one thing to use what Professor Charles Black‟s foundational work called “the constitution in all its parts” to illuminate the meaning of a particular part. It is quite another to find meaning in “the general themes of the entire constitutional document” (as John Ely put it) without relating them back to particular words and phrases. Both approaches may be called “structural”, but for a textualist there should be a manifest distinction. “General themes” not reflected in actual text are difficult to objectively identify and apply to particular disputes; one may be skeptical (at least without powerful and specific supporting evidence) that arguments based upon them reflect what the Constitution actually meant, as opposed to what one thinks it ought to have said.
(Missouri v. Holland and Historical Textualism, 73 Missouri L. Rev. 969, 972-74 (2008))
The arguments for presidential immunity seem to me to rest mainly on this unsound version of structural reasoning — that the structure of the office of the President implies immunity for official acts taken by the holder of that office.
Thus I tend to think that the Court, before reaching the immunity question, might look at the logically prior question of whether the relevant statutes apply to the President (see Jack Goldsmith's post here), including perhaps through application of the presidential avoidance canon, if there is one. I'm not sure if there's a way for the Court to get there in the Trump case, however.
Posted at 6:28 AM