Presidential Immunity

Let's talk about presidential immunity, shall we?

Let's talk about the fact that we never had to talk about it until Donald Trump became president. 

It's been understood since the beginning of the republic that presidents, as well as Congress, have to have the ability to do their jobs without the threat of prosecution if things don't go well. There will always been unintended and unforeseen consequences to government decisions - sometimes resulting in deaths. That's why no one was seriously suggesting that Trump be prosecuted for his mismanagement of the Covid crisis, even though his incompetence arguably contributed to hundreds of thousands of the deaths that ultimately resulted. Likewise, President Biden shouldn't be prosecuted for his mishandling of the withdrawal from Afghanistan, which resulted in thirteen service members being killed at the airport in a terrorist attack. Policy differences aren't crimes. Miscalculation isn't a crime. Incompetence isn't even a crime. 

The Supreme Court, in their recent decision regarding presidential immunity, did not rule that everything a president does while in office is shielded from prosecution. They made it clear that they were talking about official acts and core constitutional duties. Why did they even agree to take the case? Didn't we already know this? Of course we did. It even came up because a president engaged in allegedly criminal acts  in his election campaign and in his attempt to overturn the results of an election. 

There's a lot of exaggeration and misrepresentation about this decision. It does not mean that a president "can do anything that he wants". The checks and balances that existed before the ruling still exist. Biden, for example, has always had the power to add justices to the Supreme Court. The reasoning behind not doing so is, and always has been, a political calculation, not a legal restriction. What has been affirmed is that nothing a president does as part of being the president is not subject to prosecution. 

So what's the problem?

Two main categories of problem.

1. The court majority went beyond what they were asked to rule on - the majority opinion stated that in any question about whether an act was or wasn't part of a president's official duties there must be a presumption that any act is part of those duties. And that potential evidence that derives from the president's official duties cannot be considered. This leaves the door open for all kinds of challenges to the charges that Special Counsel Smith has brought. 
2. This is nothing but a delaying tactic. The Supreme Court was asked to rule on the question of immunity months ago. They refused, saying it had to make it's way through the lower courts. (Which all ruled that Trump was not immune). Even now, they haven't ruled that Trump is immune from prosecution in the specific cases he accused in, but have sent the case back to the appeals court for them to determine which, if any actions Trump took are immune. Surely whatever they decide will be appealed. 

The mindset of the Supreme Court majority is also disturbing. The problem as they see it, is not that president can break the law with impunity, but that a president will be constrained from doing his best for the country due to fear of criminal prosecution. This is exactly the rationale that Trump's lawyers presented. They have bought into the tale of persecution that Trump revels in. They have internalized the lie that it is the Biden administration, even President Biden himself, who is pushing these supposedly political prosecutions. Yet it's Trump who brags about exacting retribution on his political opponents, promising to jail Biden and anyone else who he doesn't like for imaginary crimes, or for exercising their constitutional responsibilities. 

The Supreme Court didn't authorize the president to be a dictator, but they did authorize him to be a criminal.