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Trump also argued, as a practical matter, that criminal immunity was necessary for the White House to function. “From 1789 to 2023, no former, or current, president faced criminal charges for his official acts—for good reason,” he claimed in his brief for the court. “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.”

This is simply not true, of course. No former president has faced criminal charges since leaving office because they either did not commit such clear-cut criminal acts while in office or they evaded responsibility for them in other ways. John Tyler, a former president who later joined the Confederacy, died shortly after the Civil War began. Nixon infamously received a pardon for his role in the Watergate scandal by his successor Gerald Ford. In fact, Ford issued the pardon for the stated reason of avoiding a criminal trial of Nixon. If Nixon had immunity all along, no pardon was necessary.

The subtext of this particular argument also happens to be Trumpism distilled. Criminal immunity is not merely necessary to protect presidents from retaliatory prosecutions that might chill otherwise legitimate exercises of presidential power. This shield is also a sword: Without criminal immunity, Trump argued, he cannot “function” at all. Breaking the law—or at least standing above it—is essential to his broader agenda.