PRESIDENTS NOT SO IMMUNE

SUPREME COURT HOLDS IN CHECK THE POWER BEYOND DEMOCRACY

By PETER THOMAS BUSCH

T

he President of the United States has 1,425 days in power to do a lot with the levers of government, often creating such momentum within government as to influence additional days of the next 4 year Presidential term.

The United States Supreme Court defined the invisible parameters of the presidency in a ruling on Monday, July 1, in Trump v. United States, No 23 -939, 603 US (2024).

Former United States President Donald Trump petitioned the court to define presidential immunity after being indicted by the Department of Justice for his alleged attempt to overturn the November 2020 Presidential election results.

Trump’s stance on the election results, or so the indictment alleges, ultimately led to the January 6 Capitol Riots.

Chief Justice Roberts wrote the opinion of the court, with Justice Sotomayor issuing the dissenting opinion, in a 6-3 decision of the highest court of review in the country.

Presidential immunity from criminal prosecution was parsed out as absolute, and as limited, and also as non-existent. In absolute immunity cases, the decision making of the President cannot be challenged. In limited immunity cases, the prosecutor must first prove that Presidential immunity does not apply.

Not every act of a President during office is an official act. And these unofficial acts are not protected by Presidential immunity.

To get to the validity of an immunity claim, the authority that a President relies on when acting must first be identified, and then second, someone must decide whether those acts committed under that authority qualify.

If a President cannot identify any presidential authority for his or her actions, then those acts are private acts, and as such, are not protected by Presidential immunity from criminal prosecution.

Communication between a President and government officials are official acts. But when the President engages with private citizens, those acts are more than likely unofficial private acts.

Acts committed by a President prior to being elected to political office are also not protected, nor are acts of a former President committed after leaving office. The beginning and end of Presidential immunity had already been decided.

United States President Bill Clinton could not rely on Presidential immunity for acts committed prior to becoming President, unrelated to the Executive Office of the President in Clinton v. Jones 520 U.S. 681 (1997).

Clinton could also not delay, while holding the office of President, the civil claim brought against him for alleged sexual harassment of a government employee while Governor of Arkansas.

Trump’s conduct, which is the subject of the indictments, involves alleged attempts to overturn the Official Presidential Election Results that elected United States President Joseph Biden to office in 2021.

United States Presidential Elections occur every four years in November. But the President Elect does not formally take office until on or about January 20. Trump allegedly sought to overturn the results during this transition period, while still holding office.

A President maintains full presidential powers from November to January, including the often used, in the last minute, pardon power.

Chief Justice Roberts states that unofficial acts of the President, even those acts that occur during office, are not immune from criminal prosecution.

The president only enjoys absolute immunity for acts conducted in the execution of core Presidential duties with clear lines of authority leading to the Constitution of the United States. Examples of such authority include Presidential acts involving the United States military, foreign policy and diplomatic missions.

The President also has limited immunity from criminal prosecution for acts committed within the authority of Congress. Congress, on the rare occasion of having majority consensus, at least enough to pass legislation, can pass statutes that compel a President to act on behalf of Americans.

These acts compelled by Congress are considered to occur on the perimeter of Presidential Authority.

The criminal prosecutor must be able to establish that indictable acts are outside of the core presidential power because immunity for acts within the core power is absolute and cannot be challenged.

Outside of the core power, the President can be challenged for official acts, having operated in a kind of limited immunity or conditional immunity, not so safe zone, within the White House.

Presidential acts quite often, more often than not, require the exercise of discretion. Discretion is the ability of the President, or a judge or even a police officer, to make judgment calls based on their personal knowledge, opinion and beliefs in how the law should be implemented or on what would be best for any given situation.

These judgement calls quite often can be classified as government policy that is roundly reversed on an oppositional President taking office subsequent to the Administration that made the policy.

The White House immigration policy under Trump was overturned by Biden. Obamacare was attacked by Trump. Presidential Administrations elected in opposition to such policies often subsequently reverse the policies once in office.

Trump had argued that all acts of a President are exercises in discretion that should be protected from criminal prosecution. Only Congress can question acts of discretion through the impeachment process, according to the Former President.

Discretion is not unlimited though. President Truman was found to have acted without authority when he nationalized almost all of the country’s steel mills, in Youngstown Sheet Tube Co v. Sawyer 343 U.S. 579 (1952).

Truman sought to secure the domestic supply of steel for use in the Military Industrial Complex during the Korean War.

Acts conducted without authority, either without Constitutional authority or without the more limited Joint Congressional Authority, are considered non-presidential.

Truman may have weighed the pros and cons of what he was about to do, but because he acted without authority to seize private property, that discretion was not protected by immunity.

Private acts, made without authority, even if made in the interests of the country, are not shielded by immunity of any kind.

Moreover, the President must act, even with authority, within the breadth of the law and in the best interest of the American people. To do otherwise attracts the Congressional Oversight power by way of the Impeachment Process.

Washington DC operates a number of layers of oversight, often far removed from the Oval Office. Congressional Committees often strike a sub-committee tasked with keeping someone or something accountable. The public spotlight on Presidential infidelity can be glaring but so is the subcommittee on such and such, tucked away out of sight of the national broadcast cameras.

The American Republic has been purposely slowed down by the Founding Fathers in a complicated series of checks and balances that occurs through the separation of powers. The Presidential Office or Executive Branch, is separate and independent from the Legislative Branch. And the Judiciary is also independent.

At the same time, appointments are made between the powers, and oversight of the other branch occurs. For example, Justices of the Supreme Court are appointed by the President, but Congress establishes oversight through a rigorous confirmation process. If the opposing party controls Congress, which in turn control the committee and sub-committee structure, these checks and balances can have substantial effect, particularly in delaying the Presidential Agenda.

For the opposing Democrats or Republicans, inaction is the slow death of election defeat in subsequent elections.

If every decision of the President were subjected to the same political rigour, nothing would get done – and nothing from nothing is nothing.

The people provide the ultimate oversight through free democratic elections. And the most popular of Presidents is checked with midterm elections every two years with a calculated percentage of Senators and Congressional Representatives required to stand for re-election. And then there is a two term limit for Presidents.

Trump has somehow jerrymandered the term limit of two, four year terms by getting 8 years in as the Republican candidate, so far, and coming around again for a second official term, years 9-12.

The court, in the decision of Trump v. United States, does not protect Trump so much as the integrity of the Office of the President which is deemed more important than the individual temporarily elected to exercise the powers of the Presidency.

If the President becomes impaired in his ability to function, such as imbued in self interest to such an extent as to jeopardize matters of national importance, Congress has the ability to impeach the president.

US President Richard Nixon was imbued in political self interest.

Nixon was forced from the Oval Office because he, a Republican, had authorized a burglary of the Democratic National Committee Offices at Watergate.

Congress began the impeachment process on February 6, 1973. And so, experienced in the political machinations of Washington DC as Nixon was, Nixon resigned a few months later on August 9, 1974, before everything got a lot more personal.

The power of impeachment was established by the Founder Fathers of the Nation. Since the American Patriots had completed a long struggle for independence in opposition to the British Monarchy, Founding Father Alexander Hamilton stated that the President would not be the King of the Republic.

The President requires immunity to maintain independence and make timely effective decisions.  Presidential decisions though are continually scrutinized.

Hamilton was eventually killed by Founding Father, Vice President Aaron Burr in an unofficial duel, duels having been outlawed. Burr and Hamilton were fierce political rivals, with Hamilton publicly opposed to Burr becoming President in 1801. Hamilton subsequently also opposed Burr’s bid to become Governor of New York in 1804. By July 11, 1804, Burr had enough of Hamilton’s disruptive behaviour, and shot him.

Burr was never charged for the crime he committed during office, but he would later be acquitted at trial for allegedly conspiring to establish an independent country in the southwest, including parts of Mexico and Texas, two years after leaving the Office of Vice President. United States v. Burr, 25F. Cas 30, 34 (No. 14, 692 d)(C.C.D. Va. 1807).

US President Joseph Biden does not have immunity for his poor performance at the Presidential debate, because that act was as a candidate and not as President on behalf of the American people.

Trump talking to Stormy Daniels is a private act.

The bitter competitive nature of politics in America, imbued with the spirit of revenge between competing interests, significantly disrupts the national agenda.  Presidents are assassinated. The Executive are impeached by Congress. The Free Press frames the political personality.

If the incoming prosecutor were allowed, unchecked, to indict the outgoing President, few things would get accomplished in Washington, other than White House diplomatic dinners, which would be a reach to a French King as opposed to immunity being a reach to a British King.

And fewer qualified people would stand for political office.

The Founding Fathers of the Nation, in drafting the Constitution, which includes the powers of the President, acknowledge that democratic governance must be able to at least function in a minimalist fashion.

A democratic government that slowly, incrementally moves forward through complicated issues infused with regional cultures, with accented bits and pieces of morality, also requires decisive executive action to meet the urgent ongoing needs of the people.

Presidential immunity allows for this decisive action in the clearest of moments to protect the national cause.