How Broad is Presidential Immunity? Good Question, but First Deal with Trump’s Claim
The movie “Civil War” and the Supreme Court hearing on presidential immunity have much in common. The former only is disappointing entertainment; the latter puts our country at stake
Two seemingly unrelated events on back-to-back days this week - one a court hearing, the other a movie - had similar outcomes. Both were disappointing, mired in fantasy and superficialities and dominated more by the specter of Donald Trump than the reality.
The Supreme Court hearing on presidential immunity Thursday was a three-hour journey into the U.S. Constitution, the rule of law and a Pandora’s Box of what-ifs. Seeing the nearly two-hour movie, “Civil War,” Friday offered as many hypotheticals as the court hearing and resolved about as many big issues, which is to say, none.
Both events had a Trump-like character hanging over them, but in neither case were the key players willing to take on the full reality of the Trump presidency. The writers of “Civil War” at least made an effort, opening with a clip of a president parroting the rhetorical hyperbole of the real Trump and an oblique reference to a president remaining in office for an unconstitutional third term.
Not so with some of the justices, and they weren’t subtle about their eagerness to ignore Trump and the issues of the case before them. “I’m not discussing the particular facts of this case,” declared Justice Samuel Alito Jr. in his questioning of the attorneys. And so it went, a three-hour hearing on the past and the future while mostly ignoring the reality of the present.
The movie has some interesting characters, a lot of graphic violence and a road trip through the front lines of a war in which it’s hard to tell who is fighting whom and for what reasons. There is little to distinguish the movie about a civil war in modern-day America from just about any war movie. At the center of the story are four journalists, two professionals, the grizzled and barely mobile veteran and a wannabe who has to grow up quickly and - to no one’s surprise - does. The two photojournalists take a lot of pictures, the two print reporters mostly drive the car or snooze. The work product of the journalists isn’t the topic of the important role of the media or subjected to “fake news” analysis. The photographers seem mostly to be taking pictures for their portfolios.
Much the same could be said about the Supreme Court hearing on whether Donald Trump has immunity for his actions taken while president. And that point is critical. The case before the court is about Donald Trump. The discussion before the court Thursday mostly was about every other president, past and future.
Certainly, the issue of whether a president after leaving office has immunity from criminal prosecution for actions taken while in office is one “for the ages,” as Justice Neil Gorsuch said. It deserves attention and definition. Immunity that is defined too narrowly may cause a president to be hamstrung by concerns of criminal prosecution after leaving office. On the other hand, a definition of executive immunity that is as broad as Trump is seeking would give constitutional standing to the definition Richard Nixon offered to interviewer David Frost: “Well, when the president does it, that means that it is not illegal”?
Trump’s argument is troubling, and not just because it is made by Trump to protect himself from accountability for his efforts to overturn the 2020 election. Trump attorney D. John Sauer argued that a president could assassinate a political opponent without legal consequences if criminal charges were not preceded by impeachment and conviction in the U.S. Senate. But as long as the Senate remains closely divided, it’s hard to see a president impeached and convicted for anything. As Adam Serwer in The Atlantic points out, “a legislature would be strongly disinclined to impeach, much less convict, a president who could murder all of them with total immunity because he did so as an official act.”
The reality - context many of the justices repeatedly ignored - is that impeachment has been eroded and weaponized by today’s politicians. Homeland Secretary Alejandro Mayorkas was impeached by the House of Representatives (and only after procedural legerdemain) not for “high crimes and misdemeanors,” as stipulated in the Constitution, but for policy disagreements and Republican political messaging.
When impeachment is just another political tool, then its value as a constitutional guardrail is diminished to the point of uselessness. It’s unlikely that anything but the most heinous and obvious crime could achieve the two-thirds vote needed for Senate conviction. And even then, the hitmen - those with lethal weapons and those with big budgets for attack ads - are sufficient deterrents to making impeachment and conviction a meaningful restraint on a renegade president.
To be sure, there is another side to the immunity question, reflected in a real-life example posed in the current Supreme Court hearings. President Barack Obama ordered drone strikes to assassinate enemies of our country. U.S. citizens inadvertently were killed in some of the attacks. Should Obama have been criminally liable after he left office for the deaths of U.S. citizens that occurred as a direct result of assassinations the president ordered?
What about former President Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld who allegedly conspired to create the “weapons of mass destruction” lie to win congressional support for the U.S. invasion of Iraq? Should Bush and others have been prosecuted for the deaths of hundreds of thousands of U.S. soldiers and Iraqis?
Legitimate questions, but not the ones before the Supreme Court at this critical moment. The issue the court is asked to resolve is whether Donald Trump is immune from criminal prosecution for actions he took as president? Rather than take that issue head on, some justices seem to be intent on slow-walking the decision.
A decision that delays Trump’s federal trial until after November would be a disservice to the country. Certainly, voters should be able to decide in an election if they want a return to the policies of Donald Trump. The right forum for criminal charges against Trump, though, is not a ballot box but a court room in which evidence is presented, subjected to cross-examination and evaluated by the rules of law.
The Supreme Court could act with the same urgency it has shown in similar circumstances. The decision in the Watergate tapes case against Nixon came just 16 days after arguments. One day after hearing oral arguments in the 2000 Gore v Bush ballot dispute, the court issued its ruling. The Colorado case that barred Trump from the ballot was decided unanimously by the current court in less than a month.
A decision by the Supreme Court on the question at hand would make a pre-election trial of Trump on the election interference charges still possible. In fact, Trump’s attorneys conceded that some of the actions in question should be considered private and outside the realm of a president’s official duties.
The scope of presidential immunity is one that deserves and needs more consideration. Well-defined guardrails of what constitutes a public action by a president are necessary to give the executive immunity from prosecution after leaving office. Perhaps clarity on immunity will also will have the added benefit of reinvigorating the safeguard of holding a criminal president accountable through impeachment and conviction.
A more thoughtful and nuanced examination of the actions of a former president charged with trying to subvert the peaceful transfer of power would have made “Civil War” a better movie. But that’s a failure of Hollywood. The Supreme Court isn’t entertainment. The cost of procrastinating and vacillating on the key question risks further loss of the public’s faith and trust in the integrity of elections and of the people and institutions we the people have empowered. That is far more expensive than a movie ticket and overpriced popcorn.
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A postscript to this column: Retired Judge Thomas Wexler, writing in an April 29 letter to,the editor of the Minneapolis StarTribune, succinctly summarized the Supreme Court’s first priority: “The wise course of action for the Supreme Court is to decide only the facts of the case before it. It would be unwise for the court to attempt to state a broader immunity rule. What the court should do is simply to state that there is no immunity for the allegations of the case before it. The allegations and clear evidence of Trump's conduct shows intent to obstruct constitutional election process and state election procedures. There should be no need for a remand to the trial court to decide immunity claims in this case.”
As always, on-point commentary and while I haven't seen the movie - and don't plan to - I did listen to the Supreme Court hearing during a long drive and I agree completely with your analysis. The questions and comments from most conservative wing of the court - Justices Thomas and Alito - made it sound like they were in a bull session at a bar musing about the theory of presidential immunity - something I assume people who aspire to the Supreme Court do - while the mid-conservatives (as I think of them), Justices Kavanaugh and Gorsuch did acknowledge an actual case in front of them but seemed more fixated on the dangers of too little immunity versus too much. The "moderate" conservatives - at least for this case - Justice Barrett and Chief Justice Roberts recognized the case but seemed inclined to think the right solution is to send the case back to the trial court to parse out public versus private acts as way to draw the immunity line. Justice Barrett did a nice job, in fact, of leading and then trapping Mr. Sauer, Trump's lawyer, in an extended exchange in which she paraphrased the indictment to make the attorney admit most of the charges fell on the "private" side of the line and - presumably - not covered by immunity.
Two take-aways for me were: no way is the trial happening before the election and second, surely a bad sign of the state of our union is when people feel like they have to listen to court hearings because the stakes are that high. And yet that's where they are.
One note of hope, from my perspective at least. My long drive was in service to a losing effort at the poker table with some high school buddies. Of the six people at the table, only one seemed to be flirting with Mr. Trump and even he wouldn't admit to it. The staff at the fancy venue we played at? While I didn't survey them, their body language seemed pretty speak pretty eloquently to me.
Bad news? This played out in ruby-red Missouri so my informal focus group is worth even less than bupkus. Makes me feel a little better about the money I left with my buddies though.