{W} ould you train a police officer to hit an uncooperative suspect over the head with a coffee pot? Of course you wouldn’t. But if “uncooperative” in this context means that the suspect, during an arrest struggle, is choking the cop to within an inch of his life, and the coffee pot is the only thing within reach, you’re damn right he should grab the pot and clobber the suspect.
It’s common sense. Actually, it’s a good deal more than that.
There’s no shortage of rebukes raining down on Donald Trump’s rant about how “A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY, WITHOUT WHICH IT WOULD BE IMPOSSIBLE FOR HIM/HER TO PROPERLY FUNCTION” blah, blah, blah. My friend Jeff Blehar is appalled, and rightly so, not least by what could implicitly be, in some horrifying but far from unimaginable contexts, Trump’s killer line that “EVEN EVENTS THAT ‘CROSS THE LINE’ MUST FALL UNDER TOTAL IMMUNITY.”
Trump’s post is provocatively wrong and dumb, such that as I write this, I feel like I’m in a race against time. All this week, I figured that any second now, the D.C. Circuit would issue a ruling forcefully rejecting Trump’s claim that he is immune from criminal prosecution for actions that may have “CROSSED THE LINE” but were within his executive authority as president. If anything could hurry the sometimes-laborious process of culling an opinion out of three appellate judges who probably want to speak with one voice but may not see eye to eye on everything, it’s a license to mutilate contemplated by a former American president who is nigh-certain to be one of two major-party candidates in the next presidential election. The decision has not yet been issued as I write this, but during oral argument last week, the panel (featuring two Biden-appointed judges) was manifestly uncongenial while testing the proposition that presidents could order political assassinations and sell pardons with impunity. It’s my luck that Trump’s characteristically self-defeating outburst could stir the judges, before day’s end, to release an opinion excoriating Trump’s immunity claim, superseding anything (more) I’d have to say about it.
But I’m going to try to say something about it anyway.
Trump’s rant doesn’t even comport with the position argued by his lawyers as he sat there with them in court. While muscular, their claim was considerably more modest. It had to be if they hoped to have some credibility. The Constitution explicitly provides that a president may be prosecuted (art. I, §3, cl. 7). The former president’s lawyers thus do not contend that presidents have unbounded immunity. They theorize — implausibly in my view — that because the relevant clause alludes to court action after conviction in a Senate impeachment trial, the potential for prosecution is circumscribed by whatever misconduct led to such a conviction; ergo, other former presidents, including those (like Trump) who have been impeached but acquitted by the Senate, would enjoy immunity.
In point of fact, the Constitution says nothing about presidential immunity. When the Supreme Court purported to discover it as protection against civil lawsuits in Nixon v. Fitzgerald (1982), that took some creative lawyering of the kind the Supreme Court thankfully came to frown on in the Scalia era. For what little it’s worth, I happen to think immunity is good policy (at least presumptively); admittedly, though, it would take even more creative lawyering to suddenly discover in the Constitution, after nearly a quarter-millennium, immunity against criminal prosecution.
Prudently, the current Supreme Court tends to think creativity is for legislators, not the justice system. And Trump ought to be careful what he wishes for (even if that cuts against his self-destructive instincts). Nothing on the Supreme Court’s horizon is more creative than Biden Justice Department special counsel Jack Smith’s effort to nail him for the Capitol riot despite the lack of a Capitol riot offense. Trump may come to be grateful that today’s justices lack enthusiasm for lawyerly innovations.
But back to immunity. Why isn’t it in the Constitution? In large part it seems to me that, having made Congress the principal locus of government power, the Framers assumed that a corrupt president would be impeached and removed. Federal prosecution was not a thing in 1787. If a president committed an egregious abuse of power that warranted House impeachment and Senate conviction, why would it occur to anyone that that should be immunized?
It was also assumed, however, that presidents — and, for that matter, legislators — would be statesmen. “Our Constitution,” John Adams trenchantly observed, “was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The Republic’s founders were not naïve enough to believe we’d always get statesmen — for God’s sake, the third vice-president was Aaron Burr! The underlying theory of the Constitution is that governments are necessary because mankind is inherently, immutably flawed; power must be dispersed and competitive because its accumulation in too few hands is the path to tyranny. The Electoral College was conceived, in part, to ensure that the president was elected by upstanding members of the community in each state, increasing the likelihood that the executive’s awesome and thus potentially ruinous powers would be vested in worthy candidates. No system designed by humans is perfect, but this one is as good as it gets.
Yet, what Adams was driving at is that our system would work best if the people and their virtuous expectations remained the most reliable check on government power. If the people were bereft of virtue, the Constitution’s governing framework would fail. This is pertinent for present purposes because, in a virtuous society, where it is the norm to expect leaders who at least aspire to be exemplary, it is not necessary — indeed, it would be strange — to write down how we expect such leaders to act within the broad parameters of their authority.
We used to talk about this sort of thing a great deal during the controversy over what was euphemistically called President George W. Bush’s “enhanced interrogation program” — what the late Senator John McCain (R., Ariz.) and the media–Democrat complex, who got to write the history, branded “torture.”
I was on the losing side of that debate, but not because I support torture — what sane person would? In fact, most of my opposition to the torture narrative stemmed from my respect for the special place that actual torture occupies in the den of human atrocity. I was a terrorism prosecutor. That provided some perspective (even if I’d have preferred not to see what I saw to get it). I despise murder, but it’s not as atrocious as terrorism; I despise rioting, but it’s not as atrocious as insurrection; and I despise “enhanced interrogation,” e.g., waterboarding, but I never believed it was as atrocious as real torture — and if you doubt me, ask any prisoner who is serving a mere month in jail whether he’d rather do the full 30 days or submit to a waterboarding session.
No, my main quarrel with the “torture” agonistes involved a matter of principle: I refused to concede that there was some aggressive measure that a president, a priori, could safely rule out if the security of the nation hinged on it. On this point, I was a Hamilton guy before the Left decided Hamilton was cool — to quote Federalist 23, “The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed.” If we were truly in a ticking-time-bomb scenario, facing a catastrophic or even existential attack, I believe it would be the president’s duty to prevent that attack if it were in his or her power to do so. I would not presume, without knowing what the threat was, to hamper the response. Obviously, then, I would want the president to make that decision without fear of indictment by the Monday Morning Prosecutors of the next administration.
Over the years, though, I’ve come around to the conclusion that I was wrong about something important. When I came out of the Justice Department all those years ago, I had an abiding conviction that the law — in my mind, the written law — should be an unblinking reflection of harsh reality: If we believe a president has such power, we should not shrink from saying so, from codifying it. That would not be rewriting the Constitution. It would be explicating what is meant by the “executive Power” that, under Article II, is “vested in a President of the United States of America.”
Hamilton, Adams, and their ingenious contemporaries were a lot smarter than me. Though they contrived several checks on it, they didn’t try to circumscribe the “executive power” much. It is not fixable because the powers of the United States are not containable — they are far more potent today than they were two centuries ago. Moreover, the things that might have to be done to protect the country are not antecedently knowable.
My pal Jonah Goldberg has often written brilliantly about “the hidden law” — as he quotes Jonathan Rauch, “the norms, conventions, implicit bargains, and folk wisdoms that organize social expectations, regulate everyday behavior, and manage interpersonal conflicts.” Hidden law works perfectly well in a virtuous society . . . until you start trying to write it down. In fact, such an exercise, depending on what it ended up endorsing by codification, could make for a noticeably less virtuous society.
We’ve had presidential immunity all along, notwithstanding many “OVER THE LINE” things done by presidents throughout our history. We haven’t prosecuted presidents for those things even though we haven’t granted them immunity in explicit terms. Thanks to that restraint — thanks to that reliance on the hidden law in lieu of written law — we’ve refrained from encouraging presidents to tread “OVER THE LINE.”
As Harry Truman could have told you, we know some presidents will inevitably have to do excruciating, potentially horrifying things if circumstances are dire enough. The problem with codifying immunity for those things — rather than presumptively but tacitly assuming it as essential to the effective functioning of the executive branch — is that such written law would inexorably become a license to go over the line when circumstances do not warrant doing so. It would undermine virtue. A Constitution such as ours, for a free republic, would work progressively less well with each erosion of virtue.
As I’ve tried to make clear, I do believe presidents should be immune from criminal prosecution for actions taken within the ambit of their executive authority. I am not claiming such immunity is in the Constitution; to the contrary, it would be surprising if it were. The policy I have in mind is consistent with the Supreme Court’s rationale in Nixon v. Fitzgerald, but I’m not convinced that the Constitution supports that ruling. To be sure, every now and then, the policy of immunity from prosecution would abide, say, a corrupt pardon issued by a departing president who, because term-limited, is beyond the reach of impeachment. The trade-off, however, is that incumbent presidents would be able to exercise their best judgment — what we elect them to do — in executing their awesome, essential duties.
Nevertheless, all of this assumes an essentially good people who elect a fittingly trustworthy president, and whose institutions, such as the Justice Department, abjure politicized prosecutions. If we have that, we can continue getting along with no codification of immunity — and it might not even matter if immunity were codified.
If we don’t have it, we can’t afford a written guarantee of presidential immunity — but that is the least of our problems.