December 11, 2025
Dr. Heather Cox Richardson
heather.richardson@bc.edu
Dear Professor Richardson:
I read your “Letter” and watch your YouTube videos religiously, and I agree with the overwhelming majority of your positions. That’s why I found myself torn by your recent video on the unitary executive and presidential immunity. My concern—one you often raise yourself—is what happens when the shoe is on the other foot.
1. Presidential Immunity: A Necessary Shield vs. Broken Checks
The structural need for some immunity is undeniable. Consider the inverse scenario: a genuinely progressive president (one can only hope…) facing a hostile Congress and a set of state attorneys general committed to stopping them at every turn. Without some degree of immunity for official acts, a president could be paralyzed by dozens of overlapping criminal investigations—many driven by political disagreement rather than genuine misconduct. On this point, I understand why the Court found some form of structural protection necessary, even if the present application benefits someone like Trump.
This principle is not new, particularly in civil law. In Nixon v. Fitzgerald (1982), the Court established that presidents are “absolutely immune” from civil liability for actions within the “outer perimeter” of their official duties. And in Clinton v. Jones (1997), the Court made clear that immunity does not extend to conduct predating the presidency. We also have precedents limiting judicial interference with the Executive's discretionary duties, as seen in Mississippi v. Johnson (1867).
The problem, however, is not the existence of this necessary shield, but the broken constitutional mechanism designed to check it.
What worries me is the almost insurmountable barrier the Constitution sets for impeachment and conviction. If impeachment is the only remedy for presidential wrongdoing—and the voting structure of the Senate makes conviction nearly impossible—then the separation of powers becomes dangerously distorted. The failure in accountability has been congressional, not structural doctrine (Trump has committed more impeachable offenses than one can count, yet Congress failed to remove him).
Because impeachment is functionally dead as a check, the separation of powers ultimately relies on a single Supreme Court vote to define the scope of presidential power—specifically, criminal immunity for official acts. The definition of what constitutes “discretionary” or “official” is hardly one that should be left to one vote in a 5-4 decision, making the Court the de facto final arbiter of executive power. This reliance on the judiciary for a political check is why I believe we should seriously consider judicial reforms, such as having an even number of justices or imposing term limits.
2. Removal of Agency Heads
This issue is equally thorny. Congress creates independent agencies, but it does so within the executive branch, and the president must remain ultimately responsible for ensuring that the laws are faithfully executed (the "Take Care Clause"). It would be strange—perhaps even dangerous—to grant unilateral, unreviewable authority to the unelected head of an agency that exercises executive power, as this undercuts the democratic accountability of the President.
I don’t like this outcome when the president is Trump, but I would welcome it under a progressive administration. That inconsistency actually reinforces the institutional point: structural rules must be designed for the long term, not for the president we prefer in a given moment.
Closing Reflection
I’m 78 and grew up during the Warren Court—a time when the Court’s agenda aligned closely with my own values. Now that it does not, the power it has accumulated feels far more ominous. The constitutional architecture remains the same; it is our political moment that has shifted. That is precisely why I hesitate to abandon doctrines like presidential immunity simply because they now protect someone we find reprehensible. The alternative may be far worse.
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