James Pfister: Presidential immunity for criminal acts
The Supreme Court (herein the court) has agreed to hear former President Trump’s claim of absolute immunity with the question: “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
The basic precedent involves civil liability: Nixon v. Fitzgerald (1982). That case held “that petitioner, as a former president of the United States, is entitled to absolute immunity from damages liability predicated on his official acts.” The court emphasized the president’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.” The court cited Justice Joseph Story’s “Commentaries on the Constitution of the United States” (1833): “The president cannot, therefore, be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of the office; and for this purpose his person must be deemed, in civil cases at least, to possess an official inviolability.”
The court noted that some officials have only “qualified immunity,” meaning allowing lawsuits only when the official violated a clearly established legal right with intent or incompetence, the president should, however, have absolute immunity. The court noted the president’s “unique position in the constitutional scheme” requires the “utmost discretion and sensitivity … on information properly held secret …” This distinguished him from other executive officials. He must be able to do his job “fearlessly and impartially” without worrying about future lawsuits: “Cognizance of this personal vulnerability frequently could distract a president from his public duties, to the detriment of not only the president and his office but also the nation that the presidency was designed to serve.”
The court observed that absolute immunity for the president “will not leave the Nation without sufficient protection against misconduct on the part of the chief executive.” There is the constitutional procedure of impeachment and removal from office. Thus, “absolute immunity will not place the president ‘above the law’.” Also, Congress can check the president. And, the president is subject to constant press and media scrutiny.
Chief Justice Warren Burger’s concurrence emphasized separation of powers. He distinguished United States v. Nixon (1974) and United States v. Aaron Burr (1807) as dealing with a subpoena to produce evidence for a criminal trial. Also, he stated the president’s absolute immunity would not place the him above the law: “the court’s holding places presidents on essentially the same footing with judges and other officials whose absolute immunity we have recognized.”
The reasons the court articulated in Nixon v. Fitzgerald for absolute civil immunity seem to me to apply to criminal liability, as well. It is a very fine line between tort (personal injury) liability and criminal liability. Both recognize intent as a mental state as well as various degrees of negligence. Tort law allows ordinary negligence for liability, whereas criminal liability normally requires gross negligence as the minimum level of fault. This difference between ordinary and gross negligence should not be the basis for denying absolute immunity for criminal liability in comparison to civil liability. If the president is immune from civil liability, he should also be immune from criminal liability. The reasons are the same.
There is a real danger of using criminal prosecution to defeat political opponents and, thus, endanger our democracy. We see what is happening today to former President Trump. David B. Rivkin, Jr. and Elizabeth Price Foley write: “Aggressive prosecutors motivated by ideology or partisanship could use capaciously worded statutes … to challenge almost any presidential action, including those related to national security activities. … The mere possibility of personal prosecution for official actions would chill future presidential decisions.” (The Wall Street Journal, March 1). Separation of powers should protect the president from both civil and criminal liability for official acts.
The presidency is sui generis, a unique position at the top of our government. He alone holds the codes that could launch nuclear weapons and destroy much of mankind. He must be trusted to act in the nation’s best interests. He should not be impeded by the fear of future partisan prosecution. As Steven Calabresi writes: “One of the key causes of the death of democracy is the criminalization of political disagreements.” (The Volokh Conspiracy, March 9). We must truncate evil political prosecutions.
— James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
This article originally appeared on The Holland Sentinel: James Pfister: Presidential immunity for criminal acts
