Biden Against the Presidency

It would be easy to take the news that President Biden’s Department of Justice has come down on the side of civil liability for President Trump as yet another salvo in the rivalry between the two men. We have already seen one election between them and could yet feature another. Plus, too, the prospect looms of criminal charges being handed up by Mr. Biden’s executive branch. The real story, though, is not about the men, but the office.On that head, the Founders and their contemporary exegetes were of one mind; in the words of the Supreme Court in Nixon v. Fitzgerald, the “President occupies a unique position in the constitutional scheme” by dint of investing the entire executive power in a “single head in whose choice the whole Nation has a part.” The president enjoys “absolute immunity from damages liability predicated on his official acts.”This fact — that the executive power of the United States inheres in one person — makes the executive different in kind rather than degree from the two other coequal branches. Upon the president rest what the government has called “vast and unremitting public responsibilities,” subsumed under the command that the chief executive “take Care that the Laws be faithfully executed.” His immunity flows from the vastness of his responsibility. How constitutionally mincing then that the Biden administration seeks to establish an “outer perimeter” for this protection. The DOJ imagines in its appeals brief that “a rule of absolute immunity for the President regardless of the nature of his acts” is not how the Constitution intends to insulate the chief executive. Rather, it would confine the immunity to “official acts” as to mark what Mr. Trump did on January 6 as outside the lines.Even the government, however, knows that the devil is in the details. It telegraphs our concern that the position they take now would hobble future inhabitants of Washington’s office. The DOJ acknowledges that immunity “ordinarily protects the President from civil damages liability arising out of his speech to the public on matters of public concern,” including what the Supreme Court has called “spontaneous and emotional appeals.”January 6, anyone? The DOJ admits that the standard for immunity that it advocates — to exclude Mr. Trump and include every other president, past, present, and future — is well nigh unworkable. It admits that “drawing a principled and judicially administrable line between the President’s official and electoral speech would pose sensitive and difficult questions.” After all, the president, as long as he is in office, is always the president.That is, the president can neither clock out nor recuse himself. So the administration, sensing that it is playing with constitutional fire, urges the appeals circuit that this “unusual case” would be a “poor vehicle” for deciding questions at the heart of our constitutional architecture. That sounds like a hedge. If we were a judge — a stretch to be sure — we’d hit them with what was known among courthouse scribes of our day as the ancient writ of spinelessness. Not to make light of the situation. This is why we have a Constitution that our Founders intended us to follow. This is what differentiates us from, say, Soviet Russia or one of those silver-plated monarchies. It is precisely with a difficult case like Mr. Trump that the rules of due process, separated powers, and now executive immunity are at a premium. If we abandon constitutional principles for special parties, what’s the point?

Biden Against the Presidency

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