Presidential Immunity

“Limited” is a more difficult concept than I would have thought.

On Monday the United States Supreme Court ruled that former presidents are “immune from federal prosecution for constitutional official acts he took while serving as President.  Response from politicians, the media, and self-proclaimed experts was immediate and partisan.  Many on the right hailed it as much needed protection from political prosecution while responses on the left ranged from the moderate – “the Supreme Court merely affirmed presidents don’t get blanket immunity – to the absurd dissenting opinion of Justice Sonia Sotomayor – “In every use of official power, the President is now a king above the law.”

Here's what President Biden had to say:

“Today's decision almost certainly means that there are virtually no limits on what the president can do.  The power of the office will no longer be constrained by the law, even including the Supreme Court of the United States. The only limits will be self-imposed by the president alone.”

A sampling of Twitter comments from large accounts (they have large followings so what they say is influential…to some degree):

It’s not just nobodies with large accounts either, there are some big names as well.  Here is one from a man who was once a respected member of Bill Clinton’s cabinet but has more and more begun to look like a partisan hack:

And in case you thought wild hyperbole was restricted to the US, here’s one from a Canadian “expert:”

As most of you know by now, I wouldn’t trust the press or the talking heads to tell me the weather much less what an important document states.  Especially when people are claiming it gives the president the powers of a monarch and the ability to murder whoever he likes.  Colour me skeptical, but I had to look for myself.  The document is 119 pages long, so you’ll forgive me for giving it the post-grad treatment and skim/reading it.  Lucky for us the first page has most of what we need in order to understand the basics.  Here are the key points

Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to:

1. Absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority

2. Presumptive immunity from prosecution for all his official acts

3. There is no immunity for unofficial acts.

The fact that the Twitterverse and the left-wing media were wrong (lied) is probably the least surprising thing you’ll read today.  Of course, there is still the narrative that this is all due to the conservative justices and they’re putting their thumb on the scale for Trump.  Unsurprisingly this doesn’t hold up either.  While it’s true the court ruled on ideological grounds with the 6 conservative justices signing the majority opinion and the 3 liberal justices dissenting, there was much in the ruling proving that this was not an effort to get Trump off.  Selected examples include (my bold and italics):

• Page 4 – “the President must be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

• Page 3, Note 2 of BARRETT, J., concurring in part: “The Constitution vests power to appoint Presidential electors in the States. Art. II, §1, cl. 2; see also Chiafalo v. Washington, 591 U. S. 578, 588–589 (2020).  And while Congress has a limited role in that process, see Art. II, §1, cls. 3–4, the President has none.  In short, a President has no legal authority—and thus no official capacity—to influence how the States appoint their electors.  I see no plausible argument for barring prosecution of that alleged conduct.”

• Page 5 and 6: With respect to Trump and his co-conspirators “attempted to enlist the Vice President to use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results” the court “remands to the District Court to assess in the first instance whether a prosecution involving Trump’s alleged attempts to influence the Vice President’s oversight of the certification proceeding would pose any dangers of intrusion on the authority and functions of the Executive Branch.”

• Page 6: “allegations regarding Trump’s conduct in connection with the events of January 6 itself” were also remanded “to the District Court to determine…whether this alleged conduct is official or unofficial.”

Our choices appear to be that the decision was honestly argued resulting in a conclusion that some may disagree with or that the conservative justices are helping Trump but are too diabolical to rule entirely in his favor.  I don’t know about you, but of the three branches of government, the Supreme Court is the one I have the most faith in (possibly the only one) and am inclined to believe it is the former not that later conclusion.

Conclusion

The fact that the president should have some immunity to prosecution should not come as a surprise to anyone who has given it any thought.  The obvious case for some immunity given by the Supreme Court was that allowing a president to be prosecuted for official conduct would endanger the ‘bold and unhesitating action’ required of an independent Executive.”  Imagine a world in which Presidents are sued or indicted on a regular basis.  If you don’t believe it’s possible, look at what’s happened to the impeachment process.  In the 221 years between 1776 and 1997 only President Andrew Johnson was impeached.  In the 27 years since then Presidents Bill Clinton and Donald Trump were both impeached and the Republicans gave serious consideration to impeaching President Biden.  Give politicians the ability to hamstring the president with legal cases and they will use it (both parties).  Absolute immunity would be equally dangerous as it could lead to a president outside of the law.  Some balance between the two extremes is necessary and in the absence of clear direction in law or the constitution it is up to the courts to decide where that balance lies.  The fact that some disagree with the ruling does not make it incorrect or a harbinger of a dystopian nightmare, it just means that “your side” didn’t like it.

Note:  Yes, I know I said I was taking the week off but the comments I saw on Twitter regarding the ruling demanded that I respond.  I also wanted some practice trying to write a shorter (900 word) post, so this is my demo and you’re my guinea pigs (sorry).