On Trump ‘immu­ni­ty’ case, con­ser­v­a­tive jus­tices shouldn’t ‘write’ rules

In last week’s Supreme Court oral argu­ments regard­ing for­mer Pres­i­dent Don­ald Trump’s asser­tion of “total immu­ni­ty” for acts com­mit­ted as pres­i­dent, con­ser­v­a­tive Jus­tices Samuel Ali­to, Brett Kavanaugh, and Neil Gor­such each con­sid­ered ques­tions out­side the court’s prop­er purview.
Except per­haps at the very mar­gins, they should not base their deci­sions on those ques­tions or the answers there­to.
Ali­to wor­ried that with­out immu­ni­ty for for­mer pres­i­dents, “there has to be a tri­al, and that may involve great expense and it may take up a lot of time, and dur­ing the tri­al, the for­mer pres­i­dent may be unable to engage in oth­er activ­i­ties that the for­mer pres­i­dent would want to engage in.”
Well, so what? First, this is true of any defen­dant. That’s the nature of being a defen­dant: It’s incon­ve­nient, to say the least. Why should a for­mer pres­i­dent be spared the both­er? Sec­ond and more impor­tant­ly, why is this even rel­e­vant? The issue at hand is not whether a pres­i­dent should, in a log­i­cal world, enjoy some form of immu­ni­ty. The issue is whether a pres­i­dent does enjoy immu­ni­ty based on any­thing in the Con­sti­tu­tion (or from the decid­ed­ly nar­row band of prin­ci­ples that are assumed to have been incorp …