Consovoy’s argument on immunity was extreme—extreme enough to overshadow his strong argument for federal jurisdiction, but not as extreme as many reported. Consovoy did not actually argue that the president can never be investigated by anyone. First, his argument was specific to state investigations. He focused repeatedly on the problem of state “proliferation” and local politics, and explicitly left the door open several times for federal investigation, saying “it’s a harder case” to argue immunity from federal investigation. (He also left the door open to argue immunity against federal investigation, but he was careful not to push this argument.)

Second, he clarified that even if states could not use “criminal process” and subpoena a president or his “custodians” for answers or documents, they could otherwise investigate. The source of the confusion is that many media outlets and commentators have taken one exchange out of context. Toward the very end of the argument, Judge Denny Chin asked about the Fifth Avenue shooting hypothetical: “Local authorities couldn’t investigate? They couldn’t do anything about it … while [the president was] in office?” Consovoy answered, “That is correct.”

But then Judge Robert Katzmann immediately jumped in for clarification: “So even gathering documents that could be used later once the president leaves office? That can’t be done either?” Consovoy quickly reversed: “That can be done. I apologize … This grand jury is proceeding. We have not sought to enjoin the entirety of the grand jury … We are simply saying: Criminal process [a subpoena] issued to a sitting president who has not been ruled out that he is a target of the investigation falls comfortably with the immunity that has to be accepted.” Consovoy is clearly saying state prosecutors can investigate a president and ask questions, but they cannot issue him a subpoena, and presumably, state officials could not arrest or detain him (even for a shooting).

Consovoy is right to be concerned about states’ abuse of investigatory powers. Judge Chin asked about this specifically: “You’re concerned that [state prosecutors] are going to act in bad faith?” Consovoy replied with an important point: “I think there is an incentive [to act in bad faith] …”

This brings us to my surprise when I realized that Consovoy and his lawyers quoted a blog post I had written on this question in their brief, on page 7: “All you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.” Trump’s lawyers actually cut off the end of that sentence without providing the required ellipsis. My sentence ended, “You can shut down a presidency with a criminal trial or two or two dozen.” They misleadingly left out my distinction between indictment and trial. But even so, I was wrong 18 months ago when I also suggested a sitting president “generally” could not be indicted absent a clear and present danger. It seemed like the Department of Justice was functioning under pressure. I was naive. A year ago, I retracted after more research on statutes of limitations.