Adding to their lasting panic over President Biden’s alarming performance in the presidential debate last week, Monday’s Supreme Court decision on presidential immunity sent the mainstream media and Washington Democrats into a tailspin of anger and fury.
In a four-minute televised address, after which he characteristically shuffled away from the podium and disappeared behind closed doors without answering any questions from assembled journalists, Biden solemnly announced his personal “dissent” from the 6-3 ruling, which he called a “dangerous precedent.”
“No one, no one is above the law. Not even the president of the United States,” he intoned in a statement that might surprise certain members of the Clinton family, hoodlums who steal up to $900 in merchandise from merchants in blue cities, and possibly even Biden himself if he has the mental capacity to recall boasting in May that the Supreme Court “didn’t stop me” from implementing student debt relief contrary to law as expressed in other high court rulings.
Flippancy aside, the new Supreme Court ruling is quite limited and did not establish that any president is “above the law.”
First and foremost, the ruling stated, “the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts.”
These restrictions are consistent with an internally binding Department of Justice memorandum of 1973, which reasoned that prosecuting a president is unconstitutional because he “is the symbolic head of the nation” and that “to wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs.”
A follow-up memorandum issued by the DOJ in 2000 upheld that determination. Special counsels Leon Jaworski, Ken Starr, and Robert Mueller all deferred to those directives in their investigations of, respectively, sitting Presidents Richard Nixon, Bill Clinton and Donald Trump.
Did this mean that those presidents were “above the law?"
Far from it.
The Justice Department’s reasoning, which stood for the past half century and is now partly enshrined in constitutional law with respect to “official acts,” implicitly recognized that any possible crimes committed by a president while in office could be adjudicated through the impeachment mechanism found in Article I of the Constitution.
While prosecution for official acts is now out of bounds, the Supreme Court’s ruling does not alter, void, or prohibit impeachment proceedings, which can result in the referral of presidents and other federal officeholders to the Senate for prosecution following a simple majority vote to impeach in the House of Representatives.
A Senate conviction would result in removal from office and, possibly, a ban on future officeholding as well as referral to criminal prosecution.
Further, impeaching a president or other high official is not time-limited to tenure in office. Trump’s second impeachment and consequent Senate trial happened after he left office in 2021, as, in the only similar case, did the 1876 impeachment trial of War Secretary William Belknap, who was tried by the Senate after he resigned.
There is no reason why impeachment could not unfold in this way for any current or future president even if he does enjoy immunity from prosecution for official acts. Theoretically, Trump himself could be impeached yet again and, if the effort is successful, sanctioned through that process.
The limitation to “official acts” for presidential immunity underscores another important element of the Supreme Court’s ruling, which specifically adds that “there is no immunity for unofficial acts.” A president who commits an alleged crime outside his official capacity, in other words, is now unequivocally liable to prosecution and very much subject to the law.
In Trump’s case, whether the charges against him stem from “official” acts will now be decided by the same federal judge, Tanya Chutkan, who twice ruled against Trump’s motions to have the Washington case against him dismissed on constitutional grounds.
Chutkan, who was appointed by former president Barack Obama and donated to his presidential campaigns, which included Biden on the ticket as the vice presidential candidate, has also made statements that appear to suggest Trump was responsible for the January 6, 2021, events, and has refused to recuse herself despite these apparent conflicts of interest.
In this, Trump is in no way “above the law,” though he would have the right to appeal an adverse ruling by Chutkan. The process, moreover, will almost certainly delay any trial to after the election.
Make no mistake — the real reason Trump’s critics are so exercised about the ruling has nothing to do with equality before the law.
If it did, why did Biden in his brief post-ruling national address lament that his opponent will likely not go to trial again before the election? If this is purely a matter of justice, and not about politics, why would the timing of the trial matter?
As the details reveal, Trump remains vulnerable to some form of legal jeopardy across the board, as will any future president who commits possible criminal conduct in office.
None will ever be a “king,” though even kings, in Anglo-American common law practice, have been held personally liable for alleged criminal conduct and, in the case of Charles I of England, tried, convicted and executed.
Trump’s critics are angry because multiple politicized attempts to prevent Trump from holding office again have failed, and seem likely to continue to fail.
In the greatest irony, these attempts may well be what gets the former president reelected.
Paul du Quenoy is president of the Palm Beach Freedom Institute. He holds a Ph.D. in history from Georgetown University. Read more — Here.