April 5, 2024
Should a U.S. President Have Absolute Immunity?
Philip Kotler
It is hard to believe that anyone would hold that a U.S. President could do anything he or she wants to do with absolute immunity? Yet that is Donald Trump’s position. Such a U.S. President could:
1. Order the military to assassinate a corrupt political rival.
2. Order the military to launch a coup.
3. Sell military secrets to a foreign adversary.
4. Use inside information to make profits on the stock market.
5. Approve the appointment of fake voters and fact electors.
Remember that Trump, after rioters swarmed the Capitol and began chanting “hang Mike Pence,” expressed his support for hanging his vice president. Trump’s lawyers would call these “official acts” that are not subject to prosecution. Attorney Bill Barr admitted that Trump would “lose his temper” and talk about people who should be executed.
Trump’s lawyer, John Sauer, claimed that a President should have absolute immunity. The President could commit lawless acts. He would be subject to prosecution only after impeachment by the House and conviction in the Senate. Would this be effective in controlling a president’s behavior? Consider that Trump had two impeachments during his single term but no convictions. The practice of “impeachment and conviction” is evidence that the President does not have absolute immunity. Yet if impeachments are never followed by convictions, then the President logically has the equivalent of absolute immunity.
Some History
It is worth noting that the founders of our country did not put a Presidential immunity clause into the Constitution, even though some state constitutions did contain an immunity clause. Neither civil nor criminal immunity is granted by the U.S. Constitution.
Remember, the American revolution was waged against a British monarch who claimed to be above the law. As Thomas Paine observed, “In America, the law is king.”
Yet American courts historically found that the president had immunity for “official acts” in the course of their duties. In 1973, amid the Watergate scandal, the Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum concluding that it is unconstitutional to prosecute a sitting president. Its arguments include that the president “is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs.”
In the 1982 Nixon v. Fitzgerald civil suit, the Supreme Court made a 5–4 decision that a president “is entitled to absolute immunity from civil 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 Court, however, emphasized that the President is not necessarily immune from criminal charges stemming from his official or unofficial acts while he is in office. We can see that the Supreme Court members were split even then by a 5–4 decision favoring absolute immunity for the President.
Note that Presidents Richard Nixon, Bill Clinton, and Donald Trump were criminally investigated while in office, but none were prosecuted while in office.
If the President is above the rule of law, what is the difference between a president and a dictator or king. Won’t this take away the power of citizens in a democratic country to influence the President? Won’t it destroy democracy? A civilized democracy needs boundaries for its elected leaders. The fundamental maxim is that no person is above the law. The law is King, not the President.
The Current Trump Case
During the Supreme Court’s current hearing, Justice Ketanji Brown Jackson raised the right question: “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?”
Yet Donald Trump’s lawyers asked the U.S. Supreme Court to approve absolute Presidential immunity. The Supreme Court listened for three hours of oral argument over Trump v. United States. Instead of declaring that the U.S. President would not have absolute immunity, the Court sent the issue back to the lower courts to consider. Up to now, the lower courts held that the President is not entitled to absolute immunity. This latest decision by the Supreme Court amounted to postponing whether the charges brought by the special counsel, Jack Smith, against Mr. Trump involved official or private acts. The Supreme Court’s delay in making a decision can drag the issue beyond the November election, thereby leaving the issue in the hands of the next elected president. If it is Trump, he will push the Supreme Court to vote for absolute immunity.
The question becomes “which poses the greater risk — putting a criminal president above the law or hamstringing noncriminal presidents with the risk of frivolous or vindictive prosecutions brought by their successors.” The Supreme Court made no decision. The liberal justices felt that the President should be accountable. The right-wing justices worried about the risk of vindictive prosecutions of the President. The Supreme Court members talked about past and future Presidents but refused to consider the specific question of Trump’s criminal behavior in staging a coup without being prosecuted.
How Should Presidential Acts be Treated?
The real need is for the Supreme Court to determine how Presidential acts are to be treated in two different situations:
1. Public acts by the President while in office.
2. Private acts by the President while in office.
Public Acts by the President While in Office
Article II, Section 4 provides for which crimes the President shall be removed from office by impeachment in the House and conviction in the Senate. Article I, Section 3, Clause 7 specifies that a President impeached by the House and convicted by the Senate is nevertheless “liable and subject to Indictment, Trial, Judgment and Punishment according to Law.”
Consider whether the President can accept a person gift from a foreign government. The Constitution (Article I, Section 9) prohibits anyone in the US Government from receiving a personal gift from a foreign head of state without the consent of Congress. Under 5 U.S.C. 7342 (FGDA) an employee may not accept a gift exceeding $480 in value from a foreign government or an international organization. Otherwise, such gifts could influence the President’s decisions.
Private Acts by the President While in Office.
The President cannot commit private acts that a common citizen would be tried for. Clearly the President cannot buy stocks, land or other investments based on inside information. Nor can the President privately tell relatives or friends who could profit from this inside information.
The President is not allowed to take home confidential information while he is still in office before the next President is installed. Donald Trump did this on a large scale and fought against giving the material back to the government.
Conclusion
If the President is granted absolute immunity, he or she could commit lawless acts against others. That person would be a dictator with impunity. We would be back to establishing a King.
By establishing that the President is subject to the rule of law, the President may avoid making high risk decisions. The U.S. federal system was set up as a democracy with checks and balances. The President’s decisions are subject to the will of Congress. Members of Congress have the right to vote on impeaching and convicting a President for a “wrong” or “serve-serving” official act. And the Supreme Court should have the right to declare an official act as unconstitutional.
The political system is full of conflicting opinions. The President should not have the power to resolve conflicts by using lawless means. Each case needs to be decided on its own merits. Over time, the decisions of the court system will clarify what actions by a President would never be approved.
“Impeachment and conviction” by Congress are a necessary and sufficient condition to keep a President from performing indecent or self-serving official acts. The Supreme Court should either abstain from making a decision favoring absolute immunity or it should declare that the President does not have absolute immunity.
