What is all this “presidential immunity” talk about, the Supreme Court considering whether presidents should be immune from criminal liability later for actions taken in office? What is the nub of the issue? What was at the heart of arguments before the Supreme Court last week? And what is the answer? Speaking candidly, this is simple. You do not need to be a lawyer to see why.
Common sense says: Other than actions on which no citizen could possibly disagree, where the evidence of a crime is overwhelming, and where a federal statute clearly sets out that crime, former presidents should not be criminally prosecuted for actions taken – particularly not a speech – when serving as president. If the Supreme Court does not recognize this immunity, the Republic sinks.
While a president should not be immune from a cold-blooded murder, burglary, accepting bribes foreign or domestic, giving aid and comfort to an enemy, the idea of suddenly imposing criminal liability for official acts, or potentially official – like a speech urging civil protest – would be fatal.
Fatal? Yes, to the Republic. Why? Pause and think about it. If presidents were afraid they would be put in prison for a speech, position, or action that opponents did not like – that is, had no immunity from criminal suits later – presidents would be paralyzed, something our Founders never wanted.
Fear of being criminally sued for political speeches, positions, or acts would overturn the entire constitutional scheme of “separate” and co-equal branches, ending or eviscerating the presidency.
For context, imagine if that same thing happened to decision-makers in the other two branches, a Supreme Court justice, judge, or member of Congress not just removable by impeachment or other means, but held criminally liable for a ruling or a speech. The world would be afire with lawsuits against justices, judges, and members of Congress, with no end in sight. Justice would vanish.
Put differently, imagine if twisting the law to accuse a political opponent of a crime while in office became an accepted way of ending an opponent’s political career, where would we be?
This is why the Supreme Court, 9-0 in 2014, sanctioned none other than Jack Smith, the same federal prosecutor targeting Trump now, for targeting former Virginia Governor Bob McConnel.
The High Court effectively said he was mocking obligations imposed on the Department of Justice to be fair, and on all prosecutors to administer justice fairly, evenly, and impartially. He was being political, which if not criminal in itself was an abuse of discretion, disrespecting Western law.
I hear you: We are already there. Yes, in effect, we are back there again – in that the federal cases against the former president for a speech on January 6th and holding classified documents – are politically motivated, disrupting or trashing public perceptions of impartial justice.
Of course, you are right. These federal cases, like the twisted political interpretations of law by politically motivated state and federal prosecutors judges, Justice, and the White House, are wrong.
When we allow any two-bit prosecutor and local judge to trash a former president, we are trashing our own Constitution – or they are trashing it. They replace the concept of fairness and impartial administration of laws, the “rule of law” in Western culture, with raw, ugly, low politics.
The effect of this prosecutorial abuse, which continues now is serious. This is why the Supreme Court must halt it by affirming presidential immunity to such flagrantly unlawful, politically inspired criminal suits.
Abuse of power by federal and state prosecutors, here against a president but potentially against everyone, is a danger to the Republic. Why? Yes, because it puts people in fear, usurps powers belonging to the other branches, and makes a mockery of the idea of justice, turning it political.
But there is more, and we all know it. It creates incredible tension in society, distrust of government, anger at the government, and then – if allowed to stand – deters good people from getting involved in leading the nation, at every level of government.
In effect, if the Supreme Court does not grant criminal immunity to Trump, no future president will act without fear of possible criminal prosecution by his or her opponents later, a collapse of the idea of impartial justice, on which the entire Republic depends. That is what is really at stake.
Robert Charles is a former Assistant Secretary of State under Colin Powell, former Reagan and Bush 41 White House staffer, attorney, and naval intelligence officer (USNR). He wrote “Narcotics and Terrorism” (2003), “Eagles and Evergreens” (2018), and is National Spokesman for AMAC.
