On the Criminal Immunity of the President

 

On the Criminal Immunity of the President

July 1, 2024

Today the United States Supreme Court issued its opinion in the case of The United States of America v. Donald J. Trump on the issue of presidential immunity from criminal prosecution. According to news reports, the court held that the president has absolute immunity from criminal prosecution for “official acts” committed while president. “Official acts” apparently means acts connected to the “core constitutional responsibilities” of the president. What “official acts” actually are, and what the “core constitutional responsibilities” of the president are, is difficult to determine at best. This is the kind of legal language that leads to years of motions, countermotions, and appeals in cases to which the legal language applies. The Supreme Court today doomed us to years of such legal maneuvering.

In the election interference cases against him in the federal court in Washington, DC, and in a state court in Georgia, Trump will no doubt claim that everything he did that had anything to do with the 2020 presidential election or the January 6 insurrection was official and within his core constitutional responsibilities as president. The federal and state prosecutors in those cases will no doubt claim none of those acts was official or within Trump’s core constitutional responsibilities as president. The courts in those cases will have to rule on those claims. Whichever side loses will certainly than appeal, and years of litigation will follow.

As nearly as I can tell from news reports, the key question here is: What are the core constitutional responsibilities of the president? Under today’s decision, the president is immune from criminal prosecution if the act in question legitimately relates to those core constitutional responsibilities. The obvious place to look for what those core constitutional responsibilities are is Article II of the United States Constitution. That Article creates the office of the presidency, provides for how the president and vice president are elected, and specifies what the president is authorized to do.

Article II:

·        Makes the president the Commander in Chief of the army and navy and of the state militias when they are called into the actual service of the United States.

·        Gives the president the power to make treaties with the concurrence of two-thirds of the Senators “present,” presumably meaning present when the Senate votes on the treaty.

·        Gives the president authority to nominate, and with the consent of the Senate appoint, ambassadors, other public ministers and “Counsels,” judges of the Supreme Court, and all other officers of the United States whose appointment is not otherwise provided for.

·        Authorizes the president to fill vacancies in the federal government with acting officials acting for a specified term without the consent of the Senate.

·        Provides that the president “shall take care that the laws be faithfully executed.”

·        Authorizes the president to “commission” all of the officers of the United States.

Article II, Section 2, also charges the states with choosing the “electors” who will be the ones who actually elect the president and vice president every four years. Article II says nothing more of significance about what the president’s responsibilities, powers, and duties are.

Most of these provisions of Article II are quite specific, but there is one of them that is not. The Constitution says that the president shall “take care that the laws be faithfully executed.” Just what that phrase means is far from clear. Perhaps it’s clear enough that “executed” means put into effect and enforced. But what does “faithfully executed” mean? That, it seems to me, is far from clear. That provision, I fear, opens an enormous can of worms in Trump’s election interference cases. Trump will no doubt claim that when he sought to overturn the results of the 2020 presidential election, he was simply seeing that the election laws were faithfully executed. He can claim that he honestly believed that the election officials of various states had not faithfully executed Article II, Section 2, of the US Constitution and that, therefore, it was incumbent on him to step in and see that that section of the Constitution was faithfully executed.

There are at least two problems with that assertion. First, the Constitution only requires the states to appoint electors “in such Manner as the Legislature thereof may direct.” Under this provision, how a state chooses its representatives in the electoral college is a matter of state law not federal law. When the Constitution charges the president with seeing that the laws are faithfully executed, it can mean only federal laws. The Constitution gives the president no power over state election or any other kind of state law at all. Therefore, what Trump did with regard to the 2020 election can in no way be excused as official acts relating to the president’s core constitutional responsibilities under Article II, Section 2.

In addition, engaging in illegal acts such as a conspiracy against the US government and unleashing a violent mob on the United States Capitol as the members of the Senate and the House gathered to fulfill one of their constitutional duties in an effort to overturn election results that a state has declared to be valid is hardly seeing that the laws are faithfully executed. When a state submits its slate of electors to the federal government it certifies, in effect at least, that its election laws were faithfully executed with regard to the subject election. Any political candidate can file suit in court in an effort to establish that the election result of a particular state was somehow invalid. Trump did that something like sixty times after the 2020 election. He lost those cases because there was not one shred of evidence of the fraud he alleged had taken place and that had supposedly corrupted the election result. There are no other legal means for a defeated candidate to challenge the results of an election. It simply cannot be legitimately contended that the Constitution gives the president the authority to engage in illegal acts, such as forming a conspiracy to challenge valid election results by having a state submit false sets of electors to the federal government and as inciting a violent resurrection, the way Trump and his minions did so many times in late 2020.

Yet, again, the issue here is not what is true legally or factually. It is what Trump can claim is true in an attempt to bring his actions with regard to the 2020 presidential election under the immunity the Supreme Court today gave the president. The majority of the present United States Supreme Court has established both in how it handled Trump’s immunity claim procedurally and in today’s absurd decision that it will do everything it can to help Donald Trump be elected once again as president of the United States. This court cared a lot that the US Constitution does not specifically mention abortion when it overturned Roe v Wade. It seems to care not at all that the Constitution nowhere says the president is immune from prosecution for criminal acts undertaken as president.

The Supreme Court apparently tried to draft today’s decision on presidential immunity as to avoid the claim that it put the president above the law, but putting the president above the law is precisely what this appalling decision has done. In a country governed under law, no person can be above or beyond the reach of the law in any way. Today, the United States Supreme Court said the president is immune from criminal prosecution for official acts. That outrageous ruling puts the president above the law. It creates the possibility of true presidential tyranny of the type Trump wants to implement. Our country is worse off for this decision. This decision puts our democracy at risk. Just how destructive today’s decision turns out to be in practice remains to be seen, but its effect can in no way be good. This decision has continued this Supreme Court’s actions what have destroyed public trust in and respect for the court. For today’s decision all we can say to this court is: Shame! Shame! Shame!