By Robert Willmann
Does a president have legal immunity for acts done in a president’s “official capacity” while in office? On the foreign policy, covert action, and targeted assassination fronts alone, one can imagine all sorts of situations in which a president’s directives and orders cause harm, or financial manipulation and corruption, or both, that would run afoul of common legal doctrines. The concept of legal immunity would shield a president from being charged in a court while in office. But what about a situation in which a president is no longer in office? Does the legal immunity follow the president when no longer in office to block criminal prosecution for an “official act” done while president? This issue is more formally stated as the subject of a case before the U.S. Supreme Court, at which oral arguments will be heard on Thursday, 25 April 2024 starting at 10:00 a.m. eastern time–
“… whether and if so to what extent does a former president enjoy presidential imunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”
This is worth paying attention to because it comes out of the prosecution of former President Donald Trump by special counsel John L. “Jack” Smith, the man who has appeared with a scruffy-looking beard. If one or more of the federal criminal charges he got a grand jury to issue against Trump turn out to involve acts Trump did in his “official capacity”, then any such offenses in a pending indictment will be blocked and cannot be presented in a trial.
The case attracted 45 “friend of the court” briefs, called amicus curiae, which presented the viewpoint and analysis of persons who are not participating parties in the lawsuit.
The audio of the oral argument should be broadcast on the C-Span network, and perhaps by news organizations and Internet sites–
http://www.c-span.org/video/?534673-1/supreme-court-hears-case-president-trumps-immunity-claim
The court clerk’s docket sheet with public access to the filed documents and briefs is here–
http://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23-939.html
This is the order granting the review of the issue–
presidential immunity_question presented-1
An oral argument before a court of appeals does not always telegraph how the case will be decided, especially since some questions to the lawyers are in the style of a devil’s advocate. But it often reveals that much of written governmental law consists of definitions and a debate about vocabulary. Former President Bill Clinton, a master of verbal tap dancing, made that perfectly clear in his testimony: “It depends on what the definition of the word is, is”.
We listened to the entire court proceedings and I was struck by the fact that the Supremes seem to have a yen to legislate when all they are asked to do is decide a particular case on constitutional grounds. “A decision for the ages”…Gorsuch. Really? How entitled and grandiose can you get?
Also, giving ANY President immunity can only diminish the power of the Supreme Court itself. You would think that they would want to remain a co-equal branch of government.
Laura,
Just like gay marriage and Obamacare.
Until Trump, except for Nixon, this has never been a problem and the SCOTUS acted rather quickly at the time. They acted even quicker when the choose GWB as POTUS. This is the most political and corrupt court ever, which will eventually bring about needed reforms much quicker.
Lars,
Al Gore was trying to “influence ” an election, after denying he lost.
I’m curious to see how this court rules given that it deems itself above the need for any code of ethics.
Obama legally murdered an an innocent American. That’s about as immune as it gets.
babelthuap,
The drone killing of Anwar al-Awlaki wasn’t based on presidential immunity. It was based on the AUMF. The ACLU and NYT sought and received the release of a redacted version of the authorizing memorandum in court. I think there were other court challenges to this drone killing, but presidential immunity was never a defense.
The assassinations of the three Awlakis ovcurred far from any battlefield. The adult Awlaki was not charged with or vonvicted of any crime. Due process now consists of a president, I mean king, pro temp’s say-so. You remember Obama’s administration got real f-ing quiet when the started killing his kids – uncomstitutionally working corruption of blood on them, again all on their super article 2 powers. No, Obama belongs in prison before Trump and Trump belongs in prison for assadsinating the second Awlaki kid, a little girl. These men know nothing of honor.
Although I haven’t followed the arguments very closely, I haven’t heard any example of Presidential behavior offered that could be considered worthy of immunity from possible prosecution by US courts. Surely there are cases where acting in an official capacity merits immunity. Why not bring them up. Or better yet, how about addressing the specific case before the court without trying to legislate from the bench?
I listened to some of it. A lot of it hinged on personal acts and official acts. At one point a justice asked Trump’s lawyer if a president order the military to commit a coup, if that would be an official act and deserving of immunity. Trump’s attorney said something to the effect that ordering a coup could potentially be considered an official act and deserving of immunity.
I suspect the unwise musings of some of the justices (particularly Alito’s, in which he ridiculously pondered aloud if not giving complete immunity might incentivize Presidents to break the law) reflect the condition that we’ve never developed a batch of clear law which addresses this issue. In our 240+ years we’ve never had the issue of a POTUS claiming total immunity, essentially kingship, and had to sort that out. As congress has never had to create clear laws for the Justices to draw from, and Justices are accustomed to interpretating existing laws, but in this there is practically nothing, some level of confusion on their part seems expectable.
I have to doubt they will make the Presidency a kingship, and if they do, I expect laws to be passed which will change that. A “child proofing” of the Oval office, as it were.
Well, if you want the Oval Office “child proofed” be sure to vote Blue because the GOP is all in on this immunity bs.
The Founders knew what they were about and the Supremes simply lack common sense.
All former presidents should be charged by their successors in office for the crimes they committed. No immunity for political decisions.
Fred –
Some former prez & congresscritters should have their throat slit and be thrown in a cesspool. Kinda like when the druids use to throw sacrificed Celtic chieftains in a peat bog.
Bad leadership should lead to bad ends.
Laura,
We should probably await their decision before judging. As the OP mentions reading too much into what is in oral arguments is a tricky game. I recall when CNN’s top legal guy, Tobin IIRC, made a complete fool of himself guaranteeing the death of Obamacare from what he heard in oral arguments.
The Constitution is practically a pamphlet. They did not try to make a rule book. I suspect they realized no document would work for a people that lacked or had lost common sense and had the humility to know they could not predict the future. We have only recently entered a period where both parties abandoned the process of nominations for POTUS to populism, something the founders clearly tried to prevent from happening.
The Constitution does not give this kind of immunity, explicitly. Extraordinary claims require extraordinary proof, per general logic. I don’t see how Trump can prevail.
The multiple cases Trump faces (some of which are legally weak) may cause the USSC to see some merit in his position, but that shows lack of faith in judges and juries to find the truth (or, at least, a reasonable conclusion based on the facts and law),,
I thought at first this was just lawfare. Part of the frantic drive to get Trump any old how that we’ve been watching ever since the Steele dossier kicked off the new American sport.
That new and engrossing sport consisting of every man and his dog throwing bricks at a President, non stop and don’t bother to wait your turn, and the target weaving and ducking as they hurtle over. A somewhat sadistic sport but hell, that’s politics.
But that’s only what I thought at first. I was wrong. What I was in fact watching on that video was a close examination of the degree to which a President can be held to account for his actions while in office. I found it fascinating. Even more fascinating, should the Supreme Court decide against Trump, to see how it’ll all work when it’s President Biden’s turn. That case’d be a real showstopper.
Looks to me like Biden’s best bet to avoid similar proceedings is to die in office. Though one sometimes wonders whether he hasn’t taken that precaution already.
Biden’s already been pronounced too enfeebled to stand trial. That’s a good reason right there to vote for him.