The distinction between a “private” and an “official” act elaborated by the Supreme Court’s conservative majority in Trump v. United States is a distinction without difference or significance. The court provided no definition of official and no definition of private. It left the lower courts, as well as the American people, flabbergasted as to whether and when the president has immunity from criminal prosecution. As a result, the high court did serious violence to the rule of law.

The court had to say that no one is above the law; it has become the watchword of our faith in government and in ourselves. Many of the justices had told the Senate as much under oath at the time of their respective confirmations.

The conservative majority, however, wanted to give Trump broad immunity. This was a legislative, not a judicial judgment. But how to do it without declaring that he is a person above the law?

However you slice it, what they did say is that Donald Trump is above the law with no elaboration as to why. For the textualists, the word immunity appears nowhere in the Constitution. Nor do the words “official act” or “private act.” The Framers knew how to confer immunity if they wanted to — the “Speech and Debate” clause confers it upon congressmen in certain cases. Immunity for the president is conspicuously absent.

At the time of the founding, a number of state governors had immunity under their states' respective constitutions, but the Founders chose not to go this route for the........

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