By Stephen S. Trott
Justices’ ruling in immunity case creates one legal standard for presidents and a different standard for citizens
The court majority’s convoluted answer to the charge that they have unjustifiably placed the president above the law is that the president is not above the law because it is the law itself that says he is above it. No matter how cleverly articulated, the result is the same: The president and his agents are free to break the laws that apply to every other person in the nation. This newly minted imperial power is difficult to reconcile with an explicit presidential responsibility in Article II of the Constitution to “take Care that the Laws be faithfully executed.”
The court’s paradoxical holding is that the person we choose every four years to faithfully enforce our laws does not have to follow them. Why? Because if he must comply with our laws, it might render him fearful and cautious in office to the detriment of the responsibilities of the executive branch. The court cited no evidence or examples to support this concern. As Justice Ketanji Brown Jackson observed in dissent, this unsupported, counterintuitive holding allows a president to do whatever he wants as long as he uses his official powers to do so. The court has uprooted the principle that it is the law that is supreme, not our officeholders.
There is a conspicuous flaw in the court’s constitutional analysis. Although the Constitution provides impeachment as a method to remove a person from office for criminal behavior, the framers of the Constitution did not consider the remedy of removal alone to be sufficient. It provides that a person removed from office by impeachment “shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law.” The Trump majority evades the plain meaning of this text by noting that the clause “does not indicate whether a former president may, consistent with the separation of powers, be prosecuted for his official conduct in particular.” The court’s reasoning is unconvincing.
…
As the dissenters in the case explain, it is neither necessary, wise nor appropriate to resort to the extreme of removing the president from the reach of the justice system when a less drastic prophylactic would do. It is sufficient to give former presidents the protection of an adequate defense to criminal charges, a defense that honors the special and important responsibilities of the office. Without getting into details, such defense would include an “as applied” constitutional challenge to the application of a statute to the activity at issue, a defense of “public authority” to do what is in question, and having acted on authoritative advice of counsel. In conjunction with the robust procedural safeguards that every suspect and defendant enjoys, these defenses would accomplish the majority justices’ objectives. The final safeguards, of course, would be the criminal law’s burden of proof beyond a reasonable doubt and a jury trial by the former president’s peers.
It would seem to come down to this consideration: Either we trust our justice system to resolve challenging cases and controversies appropriately, or we do not.
Nowhere in the Constitution or the Federalist is there any provision, suggestion, or hint that the president can with impunity commit crimes against the state or lawlessly abuse citizens without recourse. But that is what the Supreme Court has left us: a kingdom within our republic.
Stephen S. Trott is a senior judge on the U.S. Court of Appeals for the 9th Circuit. He was appointed to the federal bench by Ronald Reagan.
