Donald Trump has challenged federal charges stemming from his attempt to overturn the results of the 2020 election, arguing 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 this argument last week, but still left open the possibility that the former president could avoid prosecution.
These seemingly contradictory conclusions reflect decisions that could have far-reaching implications for presidential accountability. Justice Amy Coney Barrett, in a partial concurring opinion, argued that the “constitutional protections from prosecution” the Supreme Court granted were “narrow,” “when properly considered,” but the decision will make it difficult, if not impossible, to hold former presidents criminally liable even for outrageous abuses of power.
Both sides in the case agreed that former presidents could be prosecuted for “unofficial conduct,” and Chief Justice John Roberts affirmed that in his majority opinion. But he added that former presidents “are immune from criminal prosecution for acts occurring within the scope of 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 'risk an 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.”
Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, dissented in the majority's reasoning, warning that a president “is immune from criminal prosecution when he exercises the power of his office in any manner.” That immunity, she said, extends to a president who “orders Navy SEAL Unit 6 to assassinate a political opponent,” who “plots a military coup to maintain his power,” who “accepts bribes in exchange for pardons,” or who 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 criminally liable after their term ends,” she writes.
Former President Richard Nixon, while not particularly lacking in executive energy, clearly shared the long-held assumption: After resigning in the midst of the Watergate scandal, Nixon was pardoned by his successor, Gerald Ford, absolving him of any federal crimes he may have committed as president.
According to the impeachment bill, these crimes include many of the conduct that Roberts' book considers “official,” 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, the 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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