The Sky Is Falling!

Last week, in response to the Supreme Court’s ruling that Presidents are entitled to at least the presumption of immunity for actions taken as part of their official duties, many folks in the media and political sphere were incensed. Van Jones declared the ruling to be scary. Alexandria Ocasio-Cortez vowed impeachment action against the court due to a corruption crisis. Others Democrat lawmakers also demanded oversight of the courts, while other media decried the shredding of the Constitution. There are two serious issues with the present circus over the Supreme Court’s ruling. They are both hypocritical and inaccurate.

Oh, the Hypocrisy!

Article I Section 6 Clause 1 of the Constitution holds that legislators, such as Ms. Ocasio-Cortez, have immunity from prosecution for speech and debate conducted as part of their official duties. They are also not allowed to be arrested, except for treason, felony, or breach of peace, as they travel to or from or are participating in their sessions. In other words, U.S. legislators enjoy immunity from prosecution for official acts.

For many years, the Supreme Court has held that this clause needs to be interpreted broadly, encompassing any acts taken within the legislative sphere. It not only shields the legislators themselves, but also their aids from criminal prosecution, and to some extent questioning from authority outside of Congress. These protections are in place to help maintain the separation of powers that is essential to our form of government by preventing one branch of government from using the judicial system to manipulate, coerce, or punish their political opponents in another branch.

Oh, the Inaccuracy!

Likewise, the Constitution provides for holding Presidents, Vice Presidents and other Constitutional officers accountable to the law. According to Article I Section 4 and Section 6, Congress has the power to impeach, and the Senate has the power to try and convict those who have been impeached. While this article also notes that the Congress’s and Senate’s power is limited to removal from office, it goes on to state that those who are convicted are then subject to criminal prosecution.

Moreover, as with the clauses protecting Congress, presumptive Presidential immunity for official actions enjoys a longstanding precedent in American law. The new Supreme Court ruling is fairly consistent with its previous rulings that touch on Presidential immunity. To preserve the separation of powers and prevent one branch of government from using the judicial system to manipulate, coerce, or punish their political opponents, Presidents enjoy presumptive immunity for official actions taken while in office.

This does not prevent Presidents from being held accountable for criminal actions. Instead, it requires that the Legislative branch exercise its oversight of the Executive branch through the established process and prove the President guilty conclusively enough to bring about a conviction in the Senate. Once that has been accomplished, he or she is removed from the office. At that point, they become liable to criminal prosecution in the courts.

Oh, Please!

Realistically members of Congress actually enjoy more protection than the executive branch, given there is little accountability structure or oversight in place to bring them to justice when they abuse the immunity extended to them by the Constitution and subsequent Supreme Court rulings. This ruling did nothing to extend a new privilege to President Trump, it merely clarified the extent to which the already existing, Constitutional protection applied to the present prosecutions against him. Not only did it not extend a new privilege, it also did not halt the possibility of prosecution in the pending cases. It simply required the prosecutors to determine which, if any, actions fell under personal rather than official actions.

This does highlight a different question about the constitutionality of several lines of prosecution, however. Any case related to the 2020 election should likely be dismissed. While the claim could be made that campaigning is a personal rather than official act of the President, Article II Section 3 stipulates that it is the duty of the President to take care that the Laws be faithfully followed. There were a great number of questionable practices that came into being by questionable methods during COVID and the run-up to the 2020 election. The President had legitimate reason to wonder if the laws had been followed, and it was arguably his duty to investigate and attempt to assure that they were, which would make most, if not all of his actions in regard to the election and January 6^th official acts.

Further, Congress filed articles of impeachment on January 13, 2021, against President Trump regarding his activities pertaining to the election and January 6^th. They failed to convict in the Senate, and Trump was acquitted during the Senate trial. While the Constitution makes explicit that a Senate conviction opens a President to criminal trial, it would also seem implicit that an acquittal should produce protections similar to our double jeopardy rules in regular law. Thus, President Trump has already been tried and acquitted in the venue appropriate for trying a sitting President (and a former President when it pertains to his actions in office, as evidence by the fact that the Senate felt his departure from office was no bar to his trial). It would seem, to preserve the separation of powers and prevent one branch of government from using the judicial system to manipulate, coerce, or punish their political opponents those lawsuits touching on either set of impeachment articles should be out of bounds for criminal prosecution.

And perhaps our Congresspeople and media can get around to actually governing and reporting facts respectively without all the grandstanding and histrionics. The rest of us are a little weary of their theatrics and Chicken Little impersonations.