Presidential Immunity: Initial Thoughts

Over the last week I've been following the mainstream media conversations about the SCOTUS ruling. I've listened to many smart, articulate people providing their expert opinions, constitutional lawyers and legal scholars, individuals far more qualified than me on such matters.

Most people live busy lives, and in this culture of information overload, they rely on social media fast-takes and opinions to form their own opinions. Because I am philosophically opposed to this kind of second and third hand thinking, I figured, notwithstanding my lack of training, I'd give this one a go and read the ruling for myself. After all, we're not talking about reading a peer-reviewed study published in the Lancet. It's actually intentionally written in a style the average person can understand with not too much legal lingo. I encourage you to take the time to read it for yourself, it’s quite painless.

The first question I asked myself was, are the talking heads and legal experts over-dramatizing the effect of the decision, as the media is wont to do because it boosts viewership. Most of what I've been hearing concludes that the ruling provides total immunity to the President and that from this day forth America will be ruled by a king. Democracy over. 

My conclusion after reading the document is that notwithstanding the hair-on-fire hyperbole in the media declaring that we now have a so-called "Imperial Presidency," at the very least, the decision does provide to any future President with nefarious intentions, a road map for how he/she might be able to get away with crime in the White House. It's sort of like the map of a bank that points out where the vault with all the money is. For most of us law-abiding types, it has no value or importance. But for a thief, it is essential for planning a bank robbery. That map didn't exist until the SCOTUS just drew it. The money, in this analogy, is immunity from prosecution, and the 'vault' is what they call in the decision 'the outer perimeter of official duties'. If the President can stay within the boundaries of this unspecified outer perimeter with his conduct, the law can't touch him. Yes, he is above the law, even as the Justices write that their ruling in no way impinges on this core principle of democracy. It does and they show how. 

I had always thought that rulings of the highest Court were supposed to be grounded firmly in legal precedence. There are times in this ruling where the Justices are really contorting their argument to fit their objectives, and it’s so blatant that it's not even that hard for a non-lawyer like me to identify it.

A prime example is their heavy reliance on a case called Fitzgerald v. Nixon, a civil liability case in which the President was sued for damages by an employee of the government for being improperly dismissed from his job. That decision found that hiring and firing in the Executive Branch are core responsibilities of the Chief Executive, and so the President cannot be held liable for simply exercising his responsibilities for any reason. But the judges in that decision go much further, delving into why the office of the Presidency is unique and the occupant of that office must have certain protections to be able to freely exercise his powers without constant fear of litigation. Seems to make some sense. One can imagine every Tom, Dick and Harriet wanting to sue the President for any number of reasons. 

In this decision, the Justices refer to Fitzgerald dozens of times, fixating on the idea that any legal proceeding would render the President "unduly cautious in the discharge of his official duties." I'll come back to the importance of that a bit later. Suffice to say Justice Sotomayor's dissenting opinion spends a lot of time demonstrating how flimsy, misguided, mischaracterized and wrongheaded the reliance on Fitzgerald is.

One of the basic problems of relying on the Fitzgerald decision is that it was a case concerning civil liability. It was brought by an individual. Criminal cases are brought by the government on behalf of the People. The Court seems to be making no distinction between precedent set in a civil case, and the standard that the law requires for criminal prosecution. There are clear differences, the most obvious one being the grand jury system. With this reliance on Fitzgerald, I now understand why, during the SCOTUS hearing, Justice Alito made the snarky comment 'We all know you can indict a ham sandwich in the grand jury' or something like that. Actually what he said isn't true and he knows better. It's sort of shocking when a Judge on the highest court in the land seems to have so little faith in the system of Justice for which he is responsible. His comment was a good argument for why he shouldn't be on the Court at all, but I digress. It is apparent that this immunity ruling stems from an attitude of this kind of extreme cynicism, less than in concepts of law or a genuine desire to administer justice.   

So how does this cynicism get expressed? Well, right from the beginning of reading the decision, I was trying to parse in my mind the way the Justices use three terms, almost interchangeably: 'duties', 'responsibilities' and 'acts' (conduct). I kept asking myself what the relationship was. The obvious answer is that actions are coloured by the duties and responsibilities of the office. Conduct is either in-line or out-of-line with those duties and responsibilities. In other words, acts, in and of themselves, are unimportant, or rather they are only important insofar as they serve or contradict the purpose of the office. For example, using the robbery analogy again, there's nothing wrong with me calling my buddy on the phone to chat, but if we are planning a bank robbery, my phone-call becomes criminal. The idea of 'official acts' versus 'unofficial acts' is making a critical distinction between conduct that is in-line or out-of-line (indeed contradictory) with the duties and responsibilities of the office. Legally-speaking the only important part should be determining the purpose to which the act relates. 

That's not how the Judges see it, not exactly. They see that acts confer either 'absolute immunity' or 'presumptive immunity' on the President. As if there are categories of acts, that by their nature, embody the duties and responsibilities of the office. The acts that confer 'absolute immunity' relate to the 'core powers' described in the Constitution. They are fairly limited in scope and include such things as hiring and firing government officials, and making appointments (to the Supreme Court for example), but also the power to pardon. But it's 'official acts' for which the President possesses 'presumptive immunity' where things get vague and dicey. One example they give is when the President talks to officials in the Department of Justice. If the President engages in allegedly criminal activities while communicating with the Attorney General, as an example, it's encumbent on prosecutors to demonstrate through "content, form and context" that the President should not be immune from prosecution. The inference of the act is that it is immune. The Justices want to raise the bar by adding another (unneccesary) layer of legal protection. The concept of 'presumptive immunity' sounds a lot to me like the 'presumption of innocence', a basic legal principle we all enjoy. The difference is that while the presumption of innocence is possessed by every individual, the 'presumptive immunity' that the President uniquely enjoys is attached to his official acts alone. Presumptive immunity is designed to inhibit prosecution. It acts as a shield. As it says in the decision, "The essence of immunity 'is its possessor's entitlement not to have to answer for his conduct' in court." Admittedly, I'm not a lawyer, but this seems to be quite literally the creation of a whole new legal concept, applicable to only one person. Which begs the question, why add a layer of legal protection only enjoyed by the occupant of the Oval Office?

The answer is that they see the POTUS as someone unlike the rest of us in the eyes of the law, by virtue of occupying the office. They see him/her as someone who may have to engage in conduct that under normal circumstances could be deemed criminal, as part of his/her job, and therefore has to be afforded some special legal 'leeway' of action. They say as much openly in the ruling, writing that the President must be able to act "fearlessly and fairly" without having to worry about being "under a pall of prosecution." Read those words together, "fearlessly and fairly," and if you are like me, they seem to be two meaningless non-sequitors shoved together for no discernible reason. Fearlessness has no relationship to fairness, except that they both start with the letter 'F'. And the way they relate to the President's ability to do his/her job is never made clear. It's a head scratcher, except as a political perspective looking for a legal justification. In fact this position and approach belies its own disingenuousness. If a President is reluctant to take 'bold and unhesitating action' with 'energy', 'vigour' and 'decisiveness' - other words the ruling uses to justify giving him/her presumptive immunity - it is because they are prioritizing their personal interest over the national interest. Presidents never operate "under a pall of prosecution" when they are working for the national interest according those who have worked in the White House. I'd argue only a President who prioritized his/her personal interest would be concerned about that. 

The essence of the duties and responsibilities of the Presidency is to serve the interest of the American People. This should be the definition of 'official acts', while 'unofficial acts' are done for personal gain ie. they don't concern the duties of the office therefore they are by definition unofficial. That's all that needs to be said. In other words, there are not really any 'official' or 'unofficial' acts, only acts that serve the national interest or acts that serve personal interest. So, take the now infamous example of the President ordering Seal Team Six to assassinate a political rival. It clearly serves his personal interest. If the President says he did it because he believed his political rival was also a foreign agent, let that assertion be adjudicated in criminal court. But this new approach does the opposite. It is designed specifically to create a disincentive to prosecute to test his justification for criminal behaviour.

The argument could be made that impeachment is the recourse for determining whether the President is acting in accordance with his/her official duties in the national interest. That's true. And impeachment does not in any way constitutionally preclude criminal prosection (as Senate Majority Leader Mitch McConnell said when Trump was impeached). 

There's a lot more to say, but I'll finish this post with this: It becomes quickly apparent that this ruling has the potential to do far more harm than good. It provides very little in the way of clarity, and actually does the opposite, it creates uncertainty. 

There's a disturbing irony about a judicial decision that purports to protect the Office of the Presidency, whose occupant is duty-bound to "take care that the Laws be faithfully executed," but actually invites its occupant to corrupt that very office by showing how it can be done. Hard to understand how the Justices missed this irony, or maybe they just didn't care.