Trump’s Immunity Case Explained
Last week, the Supreme Court delivered an opinion that awards Trump absolute criminal immunity for “official” acts related to his fake electors plot.
This ruling has sparked tidal wave of sensationalized fears that orbit outlandish hypothetical situations like the question “does this mean presidents can now get away with murder?”
Opponents of this ruling believe that this level of immunity will incentivize future presidents to start casually engaging in criminal behavior.
Although I think the ruling awarded too much immunity for the president, there are a few things I want to mention off the bat.
- Presidents have already been engaging in unchecked, criminal, unconstitutional, and shady behavior for centuries. Clinton’s impeachment? Obama’s targeted drone killings? Obama’s waging of war in Libya? The Iran-Contras scandal? Watergate? And the list continues.
Effectively, this ruling doesn’t provide much in terms of practical remedies for the American public.
The courts, special investigators, and the public have declined to hold presidents criminally accountable for some of the most egregious and convincing violations of power, with impeachment being the primary mechanism for enforcing accountability.
And even when high ranking officials or presidents are threatened with criminal sanctions, they end up receiving pardons from the next president in line anyway.
The only thing this ruling changes is that now presidents get an articulated pass on certain crimes codified in law. - Presidents won’t be incentivized to commit more crimes. The president holds the highest office in America. People who become presidents are typically political puppets, career business people, or other national socialites. They are not career criminals, bank robbers, or drug dealers.
The crimes they engage in are high level involving foreign and national affairs, not the type of violent crimes associated with street criminals.
Politico reported that the hypothetical Justice Sotomayor posed in her dissent, that presidents are now empowered to assasinate anyone they like, has just become a reality. However, Politico failed to mention that presidents have been doing this already with zero criminal consequences.
The implication that going forward presidents will use their office to kill whoever wrongs them – even a mere Dunkin cashier who didn’t froth their latte- is ludicrous.
This new ruling will not inspire more presidents to start robbing banks, or go on killing sprees. The ruling may inspire a stronger imperial philosophy of leadership which could result in presidents acting more hastily in their office. But the suggestion that presidents will now be motivated to transform their offices into criminal dictatorships is an alarmist notion. - Immunity is not new. Many people in government are afforded varying degrees of immunity. Judges are immune from lawsuits for decisions they make in their capacity as judges. Government employees have “qualified” immunity which shields them from liability if they were acting reasonably within the scope of their job. Prosecutors also have immunity from choosing to bring certain cases against criminals.
The theory of immunity stems from the belief that the efficiency of government would be defeated if every employee, judge, and prosecutor had to answer to countless lawsuits filed by aggrieved members of the public.
There is a level of criminal immunity a president should have, and the court defined that immunity as encompassing official acts. Robbing a bank, cold blooded murder, are not official acts, therefore a president cannot be immune.
If a president had no immunity at all you’d see political opponents attmepting to prosecute presidents over the most mundane functions of their office. A firebrand prosecutor may try and arrest Biden for reckless endangerment of 300 million people because he’s running the country while battling dementia.
Furthermore, if every government official knew that their role subjected them to personal liability for their actions on the job, nobody would want to work in government.
The takeaway is this: modern presidents have historically enjoyed immunity in a criminal context when it comes to the exercise of powers that are vaguely construed as “presidential.”
This understanding came from public pressure, political considerations and the generalized gloss of protecting “national security.”
Now, that criminal immunity is simply codified in law.
Presidential Scandals That Went Unpunished
There have been countless instances in American history of presidents being let off the hook after serious criminal allegations.
Some of note include the Iran-Contras scandal that resulted in 6 presidential pardons and over 10 convictions after shady arms dealings with Iran and Nicaragua.
Another famous one is Watergate – where president Nixon was being investigated for burglary, wiretapping, and obstruction of justice but subsequently was pardoned by Gerald Ford.
Some honorable mentions include Obama’s targeted drone assasinations, and unconstitutional use of force. The Bush administration’s use of public funds to promote political aims in the media. Clinton’s scandals, and more.
In each scandal, no president faced criminal charges, but absolute immunity was never argued.
Varying degrees of immunity were argued, however, when it came to what communications were discoverable as evidence and limits on federal power. For example, in US v. Nixon, the court upheld a subpoena that requested Nixon’s internal documents related to Watergate. Nixon tried to argue that those documents were absolutely privileged as presidential communications. The court disagreed.
In another case, Nixon v. Fitzgerald, Nixon had fired an Air Force employee allegedly in retaliation for statements the employee made to congress.
The employee, Arthur Fitzgerald, sued the government. The court held that a president cannot be liable in a civil sense for official conduct.
Even though no court ruling ever codified absolute immunity into law, practically, presidents haven’t been charged or arrested even in the face of very serious allegations.
How The Trump Case Interpreted Immunity
Original Intent
The Trump immunity case dealt with constitutional law.
Whenever a constitutional question arises, judges look at many factors including history, text, original intent, and public policy.
Even the most stubborn “textualists” (those who only consider the actual language of the constitution), have agreed that to a certain extent the constitution is an evolving body of work that conforms to modern life and isn’t purely textual.
Thomas Jefferson once said: “Laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed.., and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”
Chief Justice John Marshall had similar thoughts: “We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”
So when it comes to presidential immunity, looking at text alone may be insufficient, especially when the constitution is silent on the issue.
Identifying original intent can also be a wild goose chase.
Many important historical figures have said many notable things over the past several hundred years.
For example, how much weight do we give to Hamilton’s contention that a president must be “vigorous” and awarded unique powers? Over the assertion of Charles Pinckney, as quoted in the dissenting opinion, that a president should not be awarded immunity?
Take for example the disagreement that occured between John Adams and William Maclay, a senator in 1789.
Adams was in favor of presidential immunity, and Maclay asked Adams to rationalize his opinion when contemplating the hypothetical of a president who goes on killing sprees.
To that, Maclay writes:
“Mr. Adams said I was arguing from cases nearly impossible. There had been some hundreds of crowned heads within these two centuries in Europe, and there was no instance of any of them having committed murder.”
Do we trust Adams original intent? Or the purported intent of his contemporaries who disagreed with him?
Revering historic figures may end up doing more harm than good. As Jefferson once said: “Some men look at constitutions with a sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment….opinions change with the change of circumstances, institutions must advance also, and keep pace with the times”
This is all to leading to the point that no matter how you look at the law or the constitution, and no matter how much guidance scholarship or academia provides on the issue, there is always an element of bologne afoot.
Supreme Court justices, historians, and scholars all disagree about original intent and implied presidential powers.
Nixon v. Fitzgerald
In support of their ruling, the court analyzed original intent by quoting another case that dealt with presidential immunity, Nixon v. Fitzgerald.
President Nixon had fired Arthur Fitzgerald from the Air Force in retaliation for comments Fitzgerald made to congress.
This was viewed as wrongful termination and Fitzgerald sued in a civil capacity – meaning – the issue of criminality was not at issue.
However, the court held that presidents can’t be sued for official acts within the scope of their presidency.
Even though Nixon did a mean thing, he did so based off core constitutional powers that allow a president to remove officials which was in his discretion as president.
The Trump court analyzed criminality in a similar vein, arguing that because of the importancy of secrecy and sensitivity in foreign and national affairs, we cannot hold a president criminally responsible for acts taken in an official capacity.Additionally, because a president needs to be allowed to act unhesitatingly, imposing the threat of criminal responsibility would hinder presidents from making quick and pressing decisions.
How’d It All End?
The court remanded some of the issues back to the district court to decide which of Trumps actions were “official” or within the “outer perimeter” of his official conduct. If they were, then he’d be immune. If they weren’t, he has no immunity.
The court held that when a president acts within his core constitutional powers, he is absolutely immune. That means things specificed by the constitution like hiring and firing officials. When a president acts within the “outer perimeter” of his official duties, he is “presumed” to have immunity, although that presumption can be overcome by the prosecution depending on the circumstances.
What Does It All Mean?
I think the high degree of immunity given to the president represents a change in American history where presidents are increasingly being treated as monarchs and systemically tilting the separation of powers out of balance.
The lasting implications of this decision will take time to realize. But in my opinion the destructiveness of this decision has been overhyped in the media.
Presidents do need some level of criminal immunity for society to function. Otherwise they’d be prosecuted incessantly by political opponents.
But this degree of immunity is a little high and it may perpetuate the history of presidents avoiding accountability.