In the Wall Street Journal, Harvey Mansfield: Presidential Immunity From Plato to Trump. An exceprt:
The executive office, though separate from the legislature, is subordinate to the latter because the former’s duty is to execute, or carry out, the law it doesn’t make. In this old view, it’s better that the executive be plural so that a single person isn’t tempted to become a king. A king is the main danger threatening every republic, and our republic, or democracy, will die should it elect an authoritarian like Mr. Trump who thinks he is king. Here I adapt President Biden’s critique of Trump v. U.S. to the minority opinion in the case.
Against this old-fashioned republican view, the majority rests on the innovation of the Constitution’s framers. It isn’t sufficiently appreciated that the U.S. is the first republic ever to be made with a single strong executive separate from the legislature and not dependent on it. Previously, the last thing a republic would want is a king. With our republic, however, the power of executing was “fortified” (in James Madison’s words) by giving to one person a share in legislation (the veto power), a power to pardon and the role of commander in chief of the military. In Article II the “executive power” is given as a whole with no specification of limited powers as for Congress, and the president takes his own special oath that he will “faithfully execute the office,” not merely the laws.
A republic with a strong executive was a difficult sell in 1787 after the revolution against King George III, whose misdeeds were listed in the Declaration of Independence. But the need for a republican substitute near-king was argued in the Federalist Papers and sealed in its famous statement: “Energy in the executive is a leading character in the definition of good government.” Executive energy must be protected, nourished and given opportunity. And it has been.
This constitutional feature has spread throughout our society in a way we now take for granted. The result is that in the American republic there is a great deal of one-man rule, though it is never called monarchy. One finds it not only in government but also in corporations and even in newspapers and universities. We like to use the word “executive” and never say “king” except in fun or derision. We prefer the energy and unity of monarchy without the name and ceremony. The dissenters in Trump v. U.S., who might be admirers of Franklin D. Roosevelt, speak calmly of the president as if there was nothing of the king about him already before the court awarded him immunity from legal prosecution.
The majority, for its part, also takes for granted the expanded power of the president but wants to secure it through immunity. Now, what can make such a president accountable for his misdeeds? As a last resort another Declaration of Independence might be required, but what does the constitutional system offer before this desperate measure is reached? The voters can decide not to re-elect the offender, of course, and Congress can impeach him. The Roberts opinion briefly mentions impeachment and describes it as a “political process.”
And in conclusion:
A closing thought on accountability through the rule of law: Accountable to whom? To the people? And to whom are they accountable? To no one, it appears, apart from God and future historians. The people vote in secret, and no one watches them as they do. No one accuses the people or gets away with blaming the voters; we look to them as if we were courtiers to a king. If there is criticism, it is sotto voce and directed at other courtiers.
Or perhaps, if the people are like a king, they have a king to whom they look. In their best thinking that would be the greatest American, who was also the greatest president, Abraham Lincoln. He is our democratic king, and he told us two things about the rule of law: First, always obey the law, for how can law rule if we don’t obey? Second, in great emergency, adventurous deeds under the Constitution and seemingly against the rule of law might be needed. These are reserved for people like him in defense of the rule of law. Meanwhile, after this bow to Lincoln, we should thank the Supreme Court for holding an instructive debate on the meaning of the rule of law.
Interesting and balanced, but in the end I don't fund much in support of an originalist presidential immunity.
Posted at 6:27 AM