One hundred and seven justices have served on the Supreme Court of the United States prior to the current Court. Remarkably, only this past week has it come to light that somehow, during a two century period, all 107 missed the part of the U.S. Constitution that confers absolute presidential immunity. Can you believe that?
No, neither can I. And that's because the Constitution does no such thing. It has no provision for presidential immunity from prosecution for potentially criminal acts committed by a person while occupying the office of the presidency.
What we are now calling "immunity" was clearly on the minds of the members of the Constitutional convention of 1787. A form of immunity does, in fact, appear in the Constitution, but written so that it applies only to members of Congress. Section 6 of Article I says
The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.(The emphasis is mine.)
Article I sets forth the design and responsibilities of the two Houses of Congress. The above passage provides members of Congress with protection against prosecution for allegedly unlawful speech uttered during Congressional session. (This privilege "flows" to congressional aides, too. The Legal Information Institute of Cornell Law School provides an extensive background analysis of Section 6 and immunity, as well as of the entire Constitution.)
In the same way that Article I describes Congress, Article II describes the presidency and "executive power." Nowhere in Article II does any sort of analogue to Congressional immunity appear for the benefit of the President. I am by no means a Constitutional authority, but the plain evidence of the Constitution's own text convinces me that immunity was a consideration during the Convention, and it was purposely avoided in describing the presidency even while a limited form was written in for Congress.
History and the Declaration of Independence provide us with context for why this should be so. In 1776, executive power and authority over the thirteen English colonies was vested in the King of Great Britain. The Declaration sets forth the reasons for independence; the preponderance of those reasons allege criminally unlawful actions taken against the colonies by King George III. The colonies had no legal recourse because the king was immune from prosecution for these actions.
It makes no sense to think that distrust and fear of unrestrained executive power exhibited in the work of 1776 would have no direct influence on the writing of the Constitution in 1787. America's "basic law," the Constitution, provides no presidential immunity.
The current SCOTUS ruling -- made by the Republican-appointed majority, with dissent only from the Democratic-appointed minority (although with potentially significant disagreement from one of the majority) -- strikes me as openly partisan because it benefits former president and convicted felon Donald J. Trump, the presumptive Republican nominee for president in this year's election. I see no way it benefits any other president.
(No other currently-alive former president has lobbied for immunity from criminal prosecution for acts committed while in office. Looking back into 19th century history shows that we've had some real stinkers as president, but none who committed or attempted to commit criminal activities, with the exception of 20th century Richard Nixon.)
Trump wanted this for obvious personal gain -- prosecution of his criminal offenses in attempting to overturn the results of the 2020 election is probably impossible now before this year's election. The Court's decision does nothing to rebut the facts of the cases lodged against Trump, but without trial, the benefits of judicial decisions prior to the election that would be gained by the nation's voters will be denied.
But I think the Court's decision diminishes and harms the United States another way, too.
The foundation of American global leadership and influence has been the stability of its basic law. This has given the peoples and governments of other nations confidence in aligning themselves with American policies and values, along with supporting the American financial and industrial infrastructure that makes possible those policies and values. It has helped to maintain confidence in the ownership of Unites States bonds, helping to keep a lid on interest rates and maintaining the U.S. dollar's "reserve currency" status.
The stability of our legal system has provided a convincing story that our policies and values are preferable to those of others, such as China's and Russia's, because it has fostered a climate of legal fairness with an aversion to favoritism.
This decision of presidential immunity is a major departure from that heritage. It looks like favoritism. In doing so it weakens the American argument that our system of governance is exceptionally better than those of places such as China and Russia because it makes our leadership look more like theirs, but with more internal friction and less political, institutional and social cohesion. America's formerly solid "rule of law" now looks shaky and subject to self-serving decisions by whoever occupies the White House.
The Republican SCOTUS majority has done something that benefits those other nations that sell themselves as more dependable environments for various partnerships; at least one of those -- Russia under Vladimir Putin -- is and has been openly hostile to the United States and our American way of life.
What happens next?
As mentioned above, the facts behind the criminal cases against Trump appear to have emerged intact. The SCOTUS decision requires the evidence be presented in lower court to determine how they adhere to the different types of presidential actions -- and so then they are categorized as immune, not immune or perhaps quasi-immune. The decision's writing is clumsy, vague and somewhat sloppy (like its reasoning).
Irrespective of how they fall into the different categories, the facts show that Trump incited a violent and armed mob to attack the Capitol of the United States on January 6, 2021. Among other criminal actions, he also is proven to have deliberately failed in his duty to ". . .preserve, protect and defend the Constitution of the United States" by spending that afternoon watching the violent, armed attack and taking no action to stop it and preserve, protect and defend those who were being attacked as they were trying to do their Constitutional duty.
Lives were lost, and the United States of America was diminished that day. He might now be immune from prosecution, but Donald J. Trump was the cause.
###
