To challenge Federal indictment Donald Trump has argued in the wake of his attempt to overturn the results of the 2020 election that a former president can only be prosecuted for “official conduct” if he is impeached by the House of Representatives and convicted of the same conduct by the Senate. The US Supreme Court rejected that argument last week, but still left open the possibility that a former president could not be prosecuted.
These seemingly contradictory conclusions reflect decisions that could have far-reaching implications for presidential accountability. Justice Amy Coney Barrett Partial agreement If the “constitutional protection from prosecution” the Supreme Court granted is narrow, “when properly considered,” the ruling will make it difficult, if not impossible, to hold a former president criminally liable even for outrageous abuses of power.
Both sides in the case agreed that a former president could be prosecuted for “unofficial conduct,” and Chief Justice John Roberts affirmed this in his decision. Majority opinionBut Roberts added that former presidents are “fully immune from criminal prosecution for acts within their constitutional authority.”
It’s not clear which conduct falls into the “extraordinary sphere,” but Roberts said a conversation in which Trump asked the Justice Department to investigate false claims of systematic election fraud clearly does. Adding to the uncertainty, even “official conduct” that most consider to be outside the “core” duties of the presidency is “at least Putative A government can overcome immunity from criminal prosecution only if it can “demonstrate that the application of a criminal prohibition to its conduct would not create a ‘danger of infringement on the powers and functions of the executive branch.'”
The stringency of this test and the lack of clarity about which conduct is “official” suggests that the distinction between “absolute” and “constructive” immunity may tend to fade in practice. And even if it turns out to be meaningful, the Court noted that absolute immunity may ultimately be necessary. all Acting “within the outer boundaries” of the President’s “official responsibilities.”
According to the majority’s argument, Justice Sonia Sotomayor: opposite opinion Joined by Justices Elena Kagan and Ketanji Brown Jackson, the ruling would grant the president “immunity from criminal prosecution for any exercise of public power.” Justice Sotomayor said this immunity would extend to a president who “orders Navy SEAL Unit 6 to assassinate a political opponent,” “plots a military coup to maintain his power,” “accepts bribes in exchange for a pardon,” or insists that the Department of Justice use fabricated evidence in a criminal case.
Instead of explaining why immunity doesn’t apply in those circumstances, Roberts accused Sotomayor of “fear-mongering based on extreme assumptions” and downplayed the threat posed by a lawless president in favor of focusing on the need to protect “vigorous executive officers” from the threat of criminal liability.
But as Sotomayor points out, presidents have long operated under that threat: “Every sitting president has conducted his or her duties with the courage and confidence that they might be held criminally liable after their term ends,” she writes.
Former President Richard Nixon, who was not plagued by the lack of energy in his administration, clearly shared that long-held belief. After resigning in the wake of the Watergate scandal, Nixon forgiveness His successor, President Gerald Ford, introduced a bill that would have covered any federal crimes he might have committed as president.
According to the proposal Articles of ImpeachmentBut these crimes include many of the conduct that Roberts considers “official” in his book, such as “making false or misleading public statements,” misusing the CIA and IRS, obstructing an FBI investigation, etc. Given that Nixon escaped prosecution for these acts, his pardon is a bit puzzling.
As this episode shows, one does not need to imagine “extreme hypotheticals” to understand the dangers of an unregulated president: in the real world, the risks of presidential paralysis are insignificant compared with the risks of presidential immunity.
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