Pathway for an Imperial Presidency

The recent surrealistic Supreme Court arguments around Donald Trump’s specific claim that he cannot be prosecuted for his self-coup and insurrection, which tried to prevent the hallowed peaceful transfer of power in the American republic, demonstrated that the ever-expanding imperial presidency could now reach its logical endpoint—illiberal authoritarianism in America.

Despite Chief Justice John Roberts’s claim, at his confirmation hearing, that the role of the judiciary is to simply “call balls and strikes” particular cases, the justices on this case wanted to focus on deciding an “opinion for the ages,” as Justice Neil Gorsuch proclaimed, or engage in wild hypotheticals that no presidential immunity from criminal behavior would somehow put any chief executive in a strait jacket or cause him to illegally try to stay in office.

The latter flight of fantasy was brought forward by Justice Samuel Alito, who asked, in a hypothetical, that: “if an incumbent loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?”

Earth to Alito: While that scenario is possible, that cynical view of vindictive prosecution has never been realized under the current American political system in the 235 years of its existence.

The real “here and now” issue in the actual case is the opposite, a president who already tried to illegally stay in office, and when being held legally accountable, is claiming absolute immunity from criminal prosecution. As another justice pointed out, the real-world problem with giving presidents such immunity could make the American presidency a center for criminal activity.

The justices seemed to be inclined to distinguish between official acts and private acts (a distinction not in the Constitution), the latter for which even Donald Trump’s counsel admitted a president could be prosecuted. The justices’ questioning seemed to indicate that some official acts should be immune from criminal prosecution. However, distinguishing private from official acts is likely to be harder than it sounds—for example, a chief executive taking a bribe for nominating someone for an office.

But wait a minute; why should even a president be exempt from criminal prosecution for breaking any law. Believing in the rule of law, which all the justices would probably agree that they do, means that the law applies equally to everyone. The assumption from some of the justices’ questioning seemed to be that under extenuating circumstances (“so-called emergencies,” I guess) the president should be allowed to undertake criminal acts.

Yet the Constitution doesn’t give the president, unlike Congress, very many enumerated powers, because its framers thought that the executive (and the judicial) branch would act to balance the dominant legislature. The document declares that one of those limited presidential functions is to “take Care that the Laws be faithfully executed.” A president cannot “faithfully” execute the laws by breaking criminal statutes anytime.

Yes, being president is a tough job, but people should not run for it if they cannot carry it out without breaking the law. (The American colonies broke away from Britain in the late 1700s, in part, because they did not want a king who was above the law.) The unsaid “flexibility” that might be required is usually for the president to be…well…imperial by acting violently overseas. After World War II, when the presidency vastly increased its power relative to the other branches and became “imperial,” many major U.S. military actions unneeded to defend the country have been undertaken by the executive without congressional approval, thus being illegal under the Constitution.

So could Barack Obama have been prosecuted for the targeted assassination of American citizens in Yemen—a war against people and a country that had no congressional approval? And what about George W. Bush’s torture of prisoners—illegal under both U.S. and international law? Both policies were unneeded (and one could argue counterproductive to defending the United States), and impeachment and prosecution could and should have been undertaken. Furthermore, the Department of Justice, in the executive branch under the supervision of the president, self-servingly has a rule that a sitting president cannot be prosecuted. This structure is not in the Constitution, nor in law, and merely indicates how the imperial presidency has protected itself from accountability.

But the Supreme Court has already shown how the unconstitutional imperial presidency has long wormed its way into the American psyche. Brazil, a developing country, had a Trump-like president—Jair Bolsonaro—whose supporters trashed the Brazilian parliament in a repeat of the January 6 insurrection in the United States. Bolsonaro has been banned from running for office for 10 years. Yet in the United States, the Supreme Court voted unanimously that Colorado could not remove Trump from its own ballot for his attempted self-coup and insurrection without congressional legislation, even though states have traditionally controlled their own elections and the 14 th Amendment of the U.S. Constitution does not require such legislation for such removal.

Donald Trump did not create the imperial presidency; however, the Supreme Court’s reluctance to nix an insurrectionist former president’s candidacy, as the Constitution permits to defend itself, and the court’s seeming receptivity to delaying his trial for that self-coup over an absurd absolute immunity claim, means that now only the American people can stanch an imperial presidency from likely turning into an illiberal authoritarian one.