Solutions to the Supreme Court’s Presidential Immunity Disaster

The Supreme Court recently made the worst ruling in its history when it gave presidents and former presidents absolute immunity from prosecution for “official acts,” throwing it back to lower courts to distinguish such acts from unofficial ones.

Proponents of the unitary theory of the executive, who relish the creation of a turbocharged extra-constitutional imperial presidency, popped champagne corks. Many others in the legal community were shell-shocked, including friends of the republic and true advocates of small government.

Yet, some are injecting hope into the bleak situation by proposing congressional actions to nullify the court’s potential creation of a rogue tyrannical presidency.

In oral arguments during Donald Trump’s quest for immunity from prosecution for the attempted self-coup and insurrection culminating on January 6, 2021, many of the justices curiously didn’t want to talk about this monumental event. They seemed more concerned that if presidents were not given immunity from prosecution, future chief executives would be afraid to do their jobs properly.

Of course, presidential timidity induced by fear of prosecution has never been a problem in the 235 years of the presidency. In fact, the opposite has been the case, with presidents operating outside the Constitution by aggrandizing too much power, especially during wars and crises.

For example, Abraham Lincoln took advantage of Congress being out of session to take the country into the Civil War without any approval in advance by the legislative body; shut down dissident newspapers and jailed their editors; incarcerated opposition politicians; suspended habeas corpus (the ability to challenge detention by the government) in areas unaffected by combat; and tried civilians in unconstitutional military tribunals instead of giving them a civilian jury trial required by the Constitution.

Beginning in early 1941, before the Japanese attack on Pearl Harbor, Franklin D. Roosevelt attempted, without congressional approval, to get Adolf Hitler to fire the first shot by helping the British to sink German U-boats in the Atlantic; Hitler refused to take the bait. FDR also used military tribunals to try to execute German saboteurs and illegally, under political pressure, incarcerated innocent people with Japanese ancestry.

During the Harry Truman administration, the presidency had aggrandized so much power from Congress, which the Founders clearly had expected to be the dominant branch under the Constitution that the presidency had become imperial. Truman jettisoned the constitutional requirement for Congress to initiate war by declaring it; he unilaterally took the United States into the Korean War.

Yet, it wasn’t called the imperial presidency until James Schlesinger Jr. gave it that moniker during Richard Nixon’s illegal abuse of national security agencies to cover up the Watergate burglary and illegally wiretapped war protesters and political opponents (which John F. Kennedy and Lyndon B. Johnson also did before him).

Ronald Reagan broke a criminal law by trading weapons to Iran for hostages and used the proceeds to fund, secretly, the Nicaraguan Contra rebels, which Congress had prohibited him from doing.

George W. Bush, taking advantage of the 9/11 attacks, expanded a congressional authorization to go after al-Qaeda and the Taliban into an unconstitutional global war on terrorism, which included illegal surveillance on Americans, the suspension of habeas corpus against terrorism suspects, illegal torture of those suspects, and their trial before kangaroo military commissions.

Under the Supreme Court’s ruling, all these presidential actions would automatically be entitled to immunity because they were done as official acts by the president, but it gets worse. The court also ruled that if a chief executive was prosecuted for “unofficial acts,” evidence emanating from his official duties could not be introduced to prove guilt—for example, if an official adviser could testify about those illegal unofficial acts, they might very well be prevented from doing so.

The term “rule of law” has always meant that no one was above the law, including influential people like the president. Furthermore, the Constitution never mentions presidential immunity and instead requires the president to take an oath stating: “I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” The document also lists as one of the primary duties of the president: “he shall take Care that the Laws be faithfully executed.” How can he faithfully execute the laws when he is violating them because he knows he won’t be prosecuted?

The Supreme Court was doubly irresponsible to make this ruling at a time when Trump—a president impeached twice for questionable conduct while in office, is a convicted felon, has said he wants to terminate the Constitution and then tried to overthrow the results of a fair election and conduct a self-coup by not leaving office—could very well be elected president again.

How can we reverse this horrible ruling that has the potential to make the president a rogue tyrant? The obvious way is to get Congress to pass via supermajorities, and an even greater supermajority of states to ratify, a constitutional amendment categorically stating that the president has no immunity from prosecution for either official or unofficial acts. Getting this consensus is hard when politics is so polarized.

Why is a constitutional amendment necessary? Some in Congress think a statute denying presidential immunity for violating criminal laws would be enough to do the trick to countermand the Supreme Court. And to prevent the Supreme Court from overruling the new law, the proposed statute says the court will have no appellate jurisdiction over the act. Instead, challenges to the new law instead would be filed with the D.C. Court of Appeals.

The Constitution says that Congress can change the jurisdiction of the Supreme Court, so the legislative body could remove the ability of the Supreme Court to rule on presidential immunity cases. Hurdles remain to enact such legislation, but the slim ray of hope is that they are much lower than those to pass a constitutional amendment. Congress needs to muster the courage to act.