Opinion: Absolute immunity with impunity is for dictators only
While we await the decision of the United States Supreme Court, speculation abounds as it always does after oral argument. Veterans of appellate courts will tell you that much of what judges ask the lawyers has more to do with influencing their colleagues on the bench than it does with the answers given.
In such an important case for our democracy presented by Trump’s proposed defense of an “absolute immunity” from criminal prosecution for alleged criminal acts committed while serving in the office of the presidency, anything less than a seven-to-two majority denying the defense would be a major setback. While there might be room for concurring opinions suggesting limited immunity has a place for decisions made in times of war – Lincoln suspended the Writ of Habeas Corpus during the Civil War – the notion that a president cannot under any circumstances be prosecuted for criminal acts is tantamount to endorsing a dictatorship, precisely the kind of absolute power Donald Trump is seeking to cover up the past and to insulate him on “day one” if re-elected for a second term.
What sticks in my craw about the fiasco Trump incited on Jan. 6, 2020, is how the majority of Republicans in the United States Senate enabled his grab for absolute power by refusing to vote on the merits of the articles of impeachment. Trump’s legal team have cleverly twisted the Senate’s failure to impeach him in the criminal case brought against him for the very acts that were the subject of the impeachment trial.
We all recall that in the days after the events, Senator Mitch McConnell – joined by then-House Minority Leader Kevin McCarthy – publicly condemned Trump, “There is no question, none, that President Trump is practically and morally responsible for provoking the events of the day.” A year later, however, when it came time to take action after the House voted to send an impeachment case to the Senate, McConnell and 42 other Republican senators voted to bar the impeachment trial on procedural grounds. Their subsequent votes not to convict paralleled their vote on the procedural bar raised by Senator Rand Paul. In other words, the majority of Republican senators evaded the issue of impeachment on procedural grounds, claiming that the Senate had no jurisdiction over Trump because he was now a “private citizen” (Rand Paul, R-Kentucky).
Senator McConnell joined in the chorus. Only seven Republican senators voted to proceed on the merits in the impeachment trial and had the courage of their convictions in voting to impeach Trump, but the vote 57-to-43 fell short of the two-thirds (67) required. At a minimum though, evasion by 43 Republican senators on the private-citizen theory implied that Trump could be prosecuted in a criminal court for those same acts as any other private citizen – no one is above the criminal law.
Had two-thirds of the senators taken the bull by the horns and voted to impeach Trump for acts “high crimes and misdemeanors” committed before the end of his term – the period of transition from the November election to inauguration of President-Elect Joe Biden – and invoked the appropriate penalty of exclusion from public office in perpetuity, the burden would have shifted to Trump. Like every other aggrieved person in this country the right to appeal the decision of Congress would have been the former presidents to assert. Assuming he could establish standing to do so, he could have litigated the claim that the Senate was not empowered to impeach him, a private citizen, as Senator Paul said, later echoed by Senator McConnell.
In all likelihood, claims that Congress was without jurisdiction to impeach a former president would have reached the United States Supreme Court the following year for the final word on the procedural claim that senators had no power to impeach the former president. If the evasive senators had decided the case on the merits and convicted Trump on what Senator McConnell called clear evidence of “moral and practical” guilt, then the high court could have vacated the impeachment ab initio (from the beginning) if it agreed that the Senate had no jurisdiction over the former president. In the event, Trump would have been cleared to run for the office again. If the high court had ruled that the Senate did have the power to impeach, the bar to political office would have remained in place; either way, it would have been a landmark decision in constitutional law.
Fast forward to 2024. A core argument Trump has made in the criminal case brought against him under federal criminal law for his actions on January 6, 2020, is that he is “absolutely immune” from prosecution. His attorneys have argued before the United States Court of Appeals and the United States Supreme Court that an ex-president can only be criminally liable if he has first been impeached by the Senate. In other words, in classic Catch-22 logic, the Republican Senators who slammed the door on an impeachment trial/vote on procedural grounds opened an escape hatch for Trump to argue in the criminal prosecution that the Senate’s failure to impeach him on the substantive acts he committed while in office bars criminal prosecution now. In short, at the root of his “absolute immunity” argument, he claims that the Senate’s failure to impeach the former president bars the Attorney General from prosecuting him as a private citizen on the same evidence of “high crimes and misdemeanors” he is now charged with in criminal court.
There’s nothing new about legal conundrums. The finest legal minds cannot anticipate all permutations. But Trump’s exploitation of Republican senators’ evasion of duty beggars belief. The cadre of Republican lawyers and former judges in the Senate and their staff could assume – as most “reasonable minds” would have – that Trump was not “immune” from the consequences of his acts in criminal courts. Let the chips fall where they may there, but it was simply not within the job description of senators to judge a “private citizen.” At least that’s what they said when they refused to vote on the merits of the articles of impeachment on procedural grounds.
Presumably, some of the recalcitrant senators had read Nixon-appointed Chief Justice Warren E. Berger’s opinion in United States vs. Richard M. Nixon, decided fifty years ago (1974), “The impediment that an absolute, unqualified [Executive] privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the functions of the courts ...” None of Nixon’s cohorts (AG John Mitchell, et al.) who went to prison, or Nixon himself, who resigned and was pardoned by President Ford, argued they were immune from criminal prosecution for their criminal acts.
The concept of “absolute immunity” for a president or former president – or anyone else – from criminal acts will be hashed out by the Supreme Court. But from George Washington’s refusal to be called “Your Majesty” or “Your Excellency” to Richard Nixon’s infamous, “I’ve never obstructed justice ..., I’m no crook” speech in 1973, the idea that anyone – in or out of public office – has absolute immunity for their criminal behavior is abhorrent to the rule of law, democratic principles, contrary to historical and legal precedent, and morally reprehensible. “Absolute power corrupts absolutely,” as the proverbial saying goes, and legal immunity with moral impunity is the stuff fascist dictators (Putin, Hitler, Mussolini) are made of, not of those who take an oath to uphold the law and to serve the best interests of the democratic republic upon which all power rests.
Phillip H. Cherney is a lawyer who has represented the infamous Oakland drug czar, Felix Mitchell, Richard Allen Davis in the Polly Klaas
kidnap/murder case, and Joel Radovcich, whom Dana Ewell hired to kill his sister and parents in Fresno in 1992. He is Adjunct Professor of Criminal Law at San Joaquin College of Law.
This article originally appeared on Salinas Californian: Opinion: Absolute immunity with impunity is for dictators only
