By Roger Armbrust
The U.S. Supreme Court this past week took on the historic question of presidential immunity.
Specifically, they addressed whether former President Donald Trump
is immune from criminal charges that he tried to overturn his loss in the 2020
election.
The nine justices of the U.S. Supreme Court
Past all the jawing back and forth, Justice Elena Kagan
hit on the specific vital nerve regarding presidential immunity. She went
straight to the wording, or lack of it, in the U.S. Constitution itself:
“The framers did not put an immunity clause into the
Constitution,” she told Trump’s attorney. “They didn’t provide immunity to the
president, and you know, not so surprising. They were reacting against a
monarch who claimed to be above the law…Wasn’t the whole point that the
president was not a monarch and the president was not supposed to be above the
law?”
So, there it is. The U.S. Constitution provides NO immunity to the
President of the United States. Which means the president, like every other
American citizen is not above the law. So if breaking a law, he or she is
liable, and must suffer the legal consequences.
The one limited immunity that is in the Constitution: legislative immunity to members of Congress through the Speech and Debate Clause. Article 1, Section 6, Clause 1 states that Senators and Representatives “shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
And you see from the wording there are limits
to that immunity. Treason is a crime. Felony is a crime. There are legal
arguments both ways on Breach of Peace, but the Constitution’s framers list it
as a crime.
The Constitution provides no such limited immunity
for the President, and clearly no absolute immunity, including criminal.
Whence Presidential Immunity?
So why is there any question about presidential immunity now?
Where did the idea, the illusive precedent, of presidential immunity come from?
Basically it has evolved since the 19th century through judicial and
political rationalizations: i.e., rulings from judges and government officials
for what they thought should be in the Constitution, but is not.
The problem with judges ruling on what they think should be in
the Constitution: they set a legal precedent, and future judges tend to rely on
legal precedent when making their own decisions.
That brings us to Trump’s current case. For precedent, his attorneys
cited the 1982 decision on Nixon v. Fitzgerald. This was a civil suit dealing
with presidential immunity. The Supreme Court ruled 5-4 that a president "is entitled
to absolute immunity from damages liability predicated on his official
acts" and "the President's absolute immunity extends to all acts
within the 'outer perimeter' of his duties of office." The defense
attorneys also cited other decisions basically supporting the idea of absolute
immunity.
Trump’s prosecutors, however, have argued that the Nixon v.
Fitzgerald decision dealt with a civil suit, not criminal charges, and does not
apply to federal criminal prosecutions. As far as “absolute immunity”, they cite
as precedent the 1974 unanimous Supreme Court decision in United States v.
Nixon. That decision rejected Nixon's claim of "absolute, unqualified Presidential
privilege of immunity from judicial process under all circumstances."
How Will It End?
The current Supreme Court heard those arguments last week, and
will now move toward a decision. But will they base their decisions on the
prosecution’s or defense’s arguments? Or on Justice Kagan’s reasoning that the
Constitution provides no presidential immunity, period?
Or will politics come into play?
One major problem: Three of the court’s justices were appointed by
Trump. They have chosen not to see any conflict of interest in their appointments
to lifetime posts with salaries of $298,500 a year. They have not recused
themselves.
In their discussions last week, they seemed to want to kick the
can down the road: send the case back to a lower court. That would probably delay
any decision until after the November presidential election.
Then Newsweek on Monday, April 29, ran an article about
Justice Brett Kavanaugh having written an article over a decade ago saying he
had long held the opinion that presidents should be protected from prosecution.
Why? The difficulties of the job, and he believed there were other methods of
holding a president accountable.
This seems to jive with Trump attorneys’ opening paragraph of the
brief to the Supreme Court: “The President cannot function, and the Presidency
itself cannot retain its vital independence, if the President faces criminal
prosecution for official acts once he leaves office.”
One, of course, may argue that neither
the President nor any elected official should be independent from the will, and the judgement, of
the people. After all, the first words of the Constitution read, “We the People of the United States…do ordain and establish this
Constitution for the United States of America.”
Also, as far as politics, press reports have shown Justice
Clarence Thomas’s wife to have actively sought to oppose the 2020 presidential
election results in which Trump lost. Ginni Thomas, a Republican activist, sent
emails urging Republican lawmakers in Arizona to choose their own slate of
electors, arguing that Biden’s election was a fraud. But Justice Thomas hasn’t
chosen to cite any conflict of interest or to recuse himself either.
Stay tuned.
U.S.
Constitution | Constitution Annotated | Congress.gov | Library of Congress
Presidential
immunity in the United States - Wikipedia
When
do Supreme Court Justices recuse themselves from cases? | Constitution Center
Ginni
Thomas’ emails deepen her involvement in 2020 election | PBS NewsHour
Trump's
three US Supreme Court appointees thrash out immunity claim (msn.com)
Read
Brett Kavanaugh's Opinion on Presidential Immunity (msn.com)
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