Presidential Immunity?  Extreme Caution Needed.

Dr. Malcolm Cross

The decision of the United States Supreme Court on the issue of presidential immunity is most troubling, to say the least.  It may not be as bad as its fiercest critics on the left say it is.  But we should still be most concerned.

In essence, the Supreme Court said the president enjoys absolute immunity from criminal prosecution while performing his core official functions, and a “rebuttable presumption” of immunity while performing other official functions.  He is not entitled to immunity when engaged in private activities not related to his official duties.  The High Court has left it to the judge who will preside over former President Trump’s election interference case to sort through the Constitution to determine the precise duties which are core and for which neither Trump nor any other former or future president can be prosecuted.

But while the precise limits (or lack of limits) on presidential behavior have not yet been fully determined, nightmare scenarios are already being presented.  In her dissent from the Supreme Court’s opinion, Associate Justice Sonia Sotomayor offered several such possibilities, including the possibility that the President could order SEAL Team 6 to assassinate a political rival.  And Donald Trump himself has begun fantasizing about hauling Liz Cheney before a military tribunal.

More rational analysts have acknowledged that the President—any president—needs the freedom to exercise his official powers without fear of criminal prosecution once his term ends.  But it’s also been noticed that no president before Trump has ever been criminally prosecuted following his retirement (whether Richard Nixon would have been prosecuted in criminal court had he not been pardoned by President Ford is admittedly a different question and one whose answer we’ll never know, but such a prosecution would have been unique in American history).

So we should be concerned about this ruling.  The powers of the presidency have, by custom, precedent, and tradition, made the office much stronger in the twentieth century than the framers of the Constitution initially conceived for it, and the nineteenth century presidents understood their powers to be.  This is understandable.  The United States has grown from a small, rural, underpopulated backwater to one of the most populous, and certainly, the strongest, megastate and superpower the world has ever known.  And the world is a far more scary and uncertain place.  It is only natural that we accept far more powerful presidents than, say, the writers of our Constitution and the officeholders of the 19th century presidency contemplated.  For example, we expect presidents to develop and present to the Congress their own legislative programs (the New Deal, Build Back Better); exercise their power to vigorously veto legislation they don’t like; maintain and dominate an Executive Office of the President with thousands of aides whom the Senate need not confirm; make executive agreements rather than treaties; command armed forces far greater, complex, and diverse than those of the 1800s; and control the means, through command of nuclear weapons, to destroy civilization throughout the planet.  Little of this was contemplated before 1900.

But with greater power comes greater danger in the misuse of that power, and therefore a greater need to develop workable and practicable means of restraint in the exercise of that power.  And we need to do so before Liz Cheney gets dragged before a military tribunal or creative presidents come up with new activities for Navy SEALs.

Whatever else one thinks of the Supreme Court’s decision, it has the virtue of provoking thought and discussion on how to balance the benefits of a strong presidency with the benefits of restraint as well.  Can men and women of good will take this opportunity and make the most of it?  One can only hope so.  Otherwise, doom for constitutional government will remain only one rogue away.

Malcolm L. Cross has lived in Stephenville since 1987 and taught politics and government at Tarleton for 36 years, retiring in 2023. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990-2024).  He was Mayor pro-tem of Stephenville from 2008 to 2014.  He has served on the Board of Directors of the Stephenville
Economic Development Authority since 2018 and as chair of the Erath County Appraisal District’s Appraisal Review Board since 2015.  He is also a member of the Stephenville Rotary Club, the Board of Vestry of St. Luke’s Episcopal Church, and the Executive Committee of the Boy Scouts’ Pecan Valley District.  Views expressed in this column are his and do not reflect those of The Flash as a whole.

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