Who is Immune ?

[GURPS]

Before leaving the Supreme Court story, I’d like to briefly point out a few things that exasperate me about the discussion of presidential immunity. I’m only a commercial litigation attorney, not a constitutional scholar, and nobody listens to me, but during the entire two hours of oral argument and hundreds of probing Supreme Court questions, it struck me the Justices were largely missing the point.

All nine Justices, including the liberals, seemed shocked by the concept of absolute presidential immunity. Like me, you’ve probably heard the media’s vomitous, broken-record jargon until your ears were bleeding: “nobody is above the law.” Really? Is that true?

Let’s start with judges. Judges are immune. If a judge makes a mistake, and an innocent person goes to the electric chair, what happens? Nothing. Even if the judge intentionally railroaded the defendant because of racial bias or for any other reason, what happens? Nothing.

How about Congressmen? Congressmen are immune. If they start a war that gets thousands of Americans killed, for illegal reasons (Wag the Dog), what happens? Nothing. (Critics will yap about bribery. So what? How many successful prosecutions have there been? At best, which is a stretch, bribery prosecutions only show a limited exception to Congress’ broad, general immunity.)

How about City Commissioners? City Commissioners are immune. What if a city commissioner violates citizens’ constitutional rights in Florida by mandating vaccines, and an outraged lawyer (me) proves the constitutional violation in court? What happens to the Commissioners?

Nothing.

How about cops? Cops are immune. At least, they enjoy qualified immunity. What happens if a cop negligently mows down grandma while chasing a teenaged jaywalker at irrationally high speeds? Nothing. Immune.

For Heaven’s sake, the entire government is immune. It’s a concept called sovereign immunity. The only way ‘round sovereign immunity is when the government graciously de-immunizes itself by passing a law allowing certain types of claims against government officials. Otherwise, tough luck, starbuck.

Although his immunity produces extremely vexing results in many cases, it is just as necessary as other types of government immunity. The President is not even an ordinary government official. He’s an entire branch of government. Article II of the Constitution establishes the President as the Executive Branch. Under the Constitution, the President enjoys powers exceeding those of any other government official, so it seems uncontroversial that he would also enjoy immunity exceeding that of any other government official.

I mean, through his pardon power, the President can even dish out immunity to anybody else, for any crime, no matter how horrible, even mislabeling checks. Why not himself?

Would I love to see Barack Hussein Obama tried for his crimes? A hundred percent. But that would open Pandora’s immunity box and start the political prosecution train going. Next stop, Banana Republic.

What to me was unaccountably absent from yesterday’s oral arguments was any discussion about the mountain of broad immunities already enjoyed by government and whether the President’s immunity should rest somewhere near, if not right at, the peak.

In other words, at minimum, a president should never have less immunity than every other government official. We put up with immunity so judges can rule without fearing personal consequences. We want Presidents to execute their duties boldly and decisively.

Nobody made that point yesterday.

What can I tell you? It’s a super strange year.

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[Tilted]

There's quite a bit of comparing apples to oranges going on in that passage. The case currently before the Supreme Court relates to immunity from criminal liability, not immunity from civil liability.

The absolute immunity which judges generally enjoy doesn't extend to criminal liability. With some exceptions (which we can get into if you so wish) judges can be criminally prosecuted if they commit crimes, even if they do so under the cover of judicial authority. And, of course, they certainly can be prosecuted if they commit crimes which have nothing to do with their judicial duties.

Prosecutorial immunity likewise doesn't extend to criminal liability. And, for the record, it isn't even absolute immunity from civil liability when it comes to some functions which prosecutors perform - i.e., investigative and administrative functions. When it comes to such functions, prosecutors may enjoy only qualified immunity.

The qualified immunity which, e.g., police officers enjoy also doesn't extend to criminal liability. The concept of qualified immunity relates to civil actions.

That said, the idea that former presidents enjoy absolute criminal immunity with regard to anything they did while they were president is pretty radical. And accepting such an idea would be pretty dangerous. The idea cuts against the ideals around which the United States was founded and the conceptual ways in which the new nation would supposedly differ from the Old World.

Fortunately not even President Trump's attorneys are arguing for such expansive immunity. They're arguing that former presidents enjoy absolute criminal immunity for official acts to include "acts within the ‘outer perimeter’ of [their] official responsibility" as president. Then they're effectively arguing that the things which President Trump did, which the charges against him are based on, fall within that 'outer perimeter.'

The proper resolution to this case, as it exists before the Supreme Court, is probably close to the second (of three) alternative(s) which President Trump's attorneys argue for - even though they likely argue for that alternative because it would mean another significant delay for any merits trial that might eventually result.

The Court should probably find that there is absolute criminal immunity for legitimately official acts. (Maybe there should be some kind of good faith qualifier for that, but even that kind of qualification could be problematic.) Then the Court should remand the case for the fact finding necessary to determine whether the alleged actions qualify as official acts. That's close to what the Trump team is asking for in its second proposed alternative. But I think the Supreme Court should provide clarity on the legal considerations which should go into that determination - such determination is necessarily part a question of law and part a question of fact - and I'm not sure the Trump team is asking for that. Its brief isn't clear on that point.

The United States is arguing that there is no absolute criminal immunity even for official acts. As a second (of three) alternatives it's arguing that, even if there is such immunity, the Court should rule that President Trump doesn't have immunity in this case in part because at least some of the alleged actions weren't official acts.

My best guess is the Court will do something roughly in line with either President Trump's second proposed alternative or the United States' second proposed alternative. In other words: Presidents have criminal immunity for official acts, but will this issue be remanded to determine whether the actions in question are official acts or will the Court decide for itself that they are not.