Honey, They’ve Shrunk the Presidency

Presidential immunity, we hardly knew you. That is our takeaway from a week in which two courts narrowed the notion that America’s chief executive be afforded an umbrella of legal protection in order to focus on his constitutional responsibilities. These failed bids for civil and criminal immunity could portend an office that is less mindful of Justice Atonin Scalia’s priority of preserving the “boldness of the president.”The incessant threat of litigation, The Great Scalia feared, could hem in the person — the president — in whom all the executive power of the United States is vested. The president alone must take care that the laws be faithfully executed. Decades before, in Nixon v. Fitzgerald, the Supreme Court explained that the “President’s absolute immunity is a functionally mandated incident of his unique office, rooted in the constitutional tradition.”That immunity, the court held, extended to the “outer perimeter” of the president’s official responsibilities. That precedent in hand, the riders of the District of Columbia federal appeals circuit, in an opinion written by its chief judge, Sri Srinivasan, held that Mr. Trump’s actions on January 6, 2021, failed to meet that test. That means that he is now vulnerable to suit from Democratic lawmakers seeking to hold him liable. The next day, Judge Tanya Chutkan dealt a similar blow, this time to the president’s claim to criminal immunity. The issue arose in the case brought by Special Counsel Jack Smith. The judge invokes Washington and Hamilton to remind Mr. Trump that he is not, and was never, a king and that the presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass.” The Constitution, she notes, makes no mention of presidential immunity. Lawyers say that “bad facts make bad law,” and Mr. Trump’s facts are not pristine. For one, he is a former president, not a current one, and would thus require a truly broad umbrella of immunity. Plus, too, the activities in question concern election matters, in which his Mr. Trump’s personal interest was high, but his constitutional role is scarce. It is the Vice President who shall open all the electoral certificates that are sent in by the several states.Mark, though, that this real time accretion of precedent, if it stands up on appeal, would apply not only to Mr. Trump but to his successors. That the immunities of high office were before this week a meager body of law —the names Nixon, Clinton, and Burr just about cover the historical record — makes these findings only more significant. The dilution of immunity at a time when prosecutions are growing more political is a concern for the presidency.That is where come in Scalia’s worries over boldness.* The Great Scalia was worried not only about the boldness of the president being shaken but also the boldness of the president’s aides. It is not difficult to imagine a future presidency lashed with suits and paralyzed by prosecutions, where the president’s inner circle glance nervously at the possibility of future legal worries — while he’s still in office or has finished his White House years.Such a White House, one can imagine, would have little bandwidth to contemplate crises abroad or at home. Like war itself, the law would become politics by other means. Impeachment has become de rigueur, and it is no longer impossible to imagine criminal charges also becoming commonplace, an inevitable feature of one’s time in power or post-presidency. When it pours, neither party wants to be stuck with a holey umbrella.________* The case in which TGS made the point about the boldness of the president is Morrison v. Olson.

Honey, They’ve Shrunk the Presidency

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