I have not really studied this issue in depth – and so my view should be understood as tentative and preliminary – but here goes.
My bottom line is some form of constitutional presidential immunity is certainly a plausible view as a matter of precedent. How could it not be given the (unenumerated) presidential immunities that the Supreme Court has recognized? But as a matter of the original meaning, I do not think there is such an immunity.
The Constitution enumerates certain immunities, such as the speech and debate immunity. This cuts strongly against unenumerated presidential immunities. Presidential immunities could theoretically be found under the Vesting Clause but monarchial immunities were pretty clearly rejected by the constitutional enactors. If governors at the time of the Constitution generally enjoyed immunity, that would be evidence for the immunity but no one has pointed to such immunity. And of course the Impeachment Punishment Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
This does not say that one is subject to criminal punishment only if one has been impeached and convicted.
It is conceivable – although certainly not inevitable – that Congress does not have authority to pass laws regulating certain core presidential powers such as the veto power, the pardon power, and the recommendation power. But even if true, that would not provide a general presidential immunity for official acts.
A separate question is whether the criminal statutes Congress has enacted apply to the President. Under existing precedents regarding statutory interpretation, there is certainly a plausible case that these statutes do not apply absent a clear statement, even though those statutory interpretation precedents seem problematic from an originalist perspective because they involve substantive canons. Even from a more originalist interpretive approach, there are serious questions whether many criminal statutes apply to presidents, given how rarely they were applied to presidents in the past. But statutory interpretation is a separate question from constitutional immunity.
Some people would defend presidential immunities on “structural grounds.” The argument is that the overall structure or system of the Constitution requires that the President be protected from prosecutions for official acts he committed when President. But such naked structural arguments – divorced from any constitutional text – are extremely problematic. They are too easy to make up. Does it seem like a good idea to the justices? If so, the structure must require it. That is not the way to determine what the Framers enacted.
Structure does have a place in originalist constitutional interpretation. When the text is ambiguous or otherwise unclear, structure is a permissible way to resolve that ambiguity. But it is entirely different to use naked structural arguments that are divorced from the text. In the former case, we are determining what the text written by the Framers meant. In the latter case, we do not have any good reason to believe that the Framers enacted this requirement.
Some might argue that if a power cannot be exercised without an accompanying immunity, then that immunity is fairly inferred. But even if one accepts that argument, presidential power can be exercised without this immunity. It simply means that the power can be exercised less effectively.
But even if one is troubled by the structural argument, the argument against constitutional presidential immunity does have a structural response. While the Constitution does not provide an immunity, it allows the Congress to enact a law under its Necessary and Proper authority to provide limited or full protection to former Presidents from prosecutions. Thus, Congress can address this structural issue.
Of course, it seems unlikely that the existing Congress will pass such a law. But if such prosecutions become more frequent, Congress might pass a law in the future protecting former Presidents. The law could be written to apply in the future – say six years from its enactment – so that no one can predict the political party of the President the law will protect. While this might still seem unrealistic, similar political changes have happened in the past. Most Democrats (and some Republicans) used to believe the Independent Counsel was great when it was applied to Republican Presidents. When it came to be applied to a Democratic President, Democrats suddenly came to understand why it was problematic. Only then was the Independent Counsel statute allowed to die, something that would have been unthinkable a decade earlier.
It is important to be clear about why we might need a statute protecting Presidents now when that has never been required in the past. There has always been an important constitutional norm that prohibited the existing President from prosecuting former Presidents and persons running against him. That norm operated to make a statute protecting former Presidents unnecessary. But now one political party at both the state and federal level has chosen to ignore and destroy that norm in not one, not two, but a series of prosecutions, most of which are extremely weak.* Even if one of the prosecutions is not weak, it would not have been brought in the past.
It is important to say this because we are witnessing very little criticism for the destruction of an essential norm. Many people are reluctant to criticize these prosecutions because they fear being accused of supporting Trump or because they strongly dislike Trump. But Trump’s actions are not the main issue. Yes, Trump has done some bad things and has seriously violated norms. But these prosecutions would not have been brought under the old norm. These prosecutions will lead to retaliatory prosecutions by the Republicans in the future, and then we will be off to the races. With the evisceration of the norm, bad consequences will inevitably result, consequences that we associate not with one of the world’s oldest democracies but with banana republics.
* This might seem like a politically partisan point but it is not made in a spirit of partisanship. Both political parties have made many mistakes. But the mistake that the Democrats are making has far more serious long term consequences than other mistakes made by both Republicans and Democrats.
Posted at 8:00 AM