There Is No ‘Immunity Clause’

By Charles C. W. Cooke

Tuesday, April 30, 2024

 

By this point, I have read a good number of takes on Trump v. United States, the “presidential immunity” case that is currently being considered by the Supreme Court, and, a week or so into that endeavor, I have precisely the same question as I did going in: Why, as a constitutional matter, would anyone think that the president of the United States enjoys any such thing?

 

As a purely practical matter, the president enjoys a de facto inoculation against federal prosecution for as long as he serves in his role. But that inoculation is a byproduct of our system of separated powers, not of some hidden “immunity clause” that can be inferred from the text and exquisitely delimited by the courts. In recent years, we have come to talk about the various agencies and departments that have been added to the executive branch of the federal government as if they exist independently of the president. But this, of course, is ridiculous. The president is the head of the federal executive branch, and, as a result, everyone who works there works for him — including, yes, those who work within federal law-enforcement bodies such as the FBI and the DOJ. To argue otherwise is to demand the establishment of a free-floating, unelected fourth branch of government that can wield the executive power that is vested in the elected president without actually being accountable to that elected president. In most cases, this arrangement is a boon to self-government, but does contain an obvious downside: That however strong the evidence of the president’s criminal guilt, he cannot be forced to do what he would need to do for a successful prosecution, which, under our system, is to bring a case against himself. Ugly as it may sound, by virtue of having won the prior election a sitting president can indefinitely prevent this state of affairs — and do so perfectly legally — simply by declining to assent to the process and then by removing anyone within the executive branch who would prosecute him.

 

Does this make the president a dictator? Of course not. For a start, it applies only to federal prosecutions; courtesy of the same constitutional document from which the president derives this power, the states remain mostly unimplicated (though, given federal supremacy, state prosecutors would potentially face legal obstacles were they to try and imprison a sitting president). More important still: While the president can block himself from being held criminally accountable at the federal level, he cannot do anything about the political remedy for such behavior, which is impeachment. Congress can, if it so wishes, remove the president of the United States at any point, and for any reason. Certainly, there exist some interesting questions about what limits the Founders intended to place on the impeachment power, but, given that the process is uniformly non-justiciable, they remain just that: interesting questions. In consequence, the response to the question, “What if?” is “Congress.” Within our magisterial scheme of government, Congress remains the safety valve.

 

By definition, a diametrically opposite case can therefore be made for the immunity claims of presidents who are no longer in office. Because there is no constitutional immunity clause, ex-presidents lack the per se appeal to special treatment under the law; because they are no longer in office, they lack the Article II powers that are necessary to block their own prosecution. They are, for all intents and purposes, the same as you and me. During oral arguments in Trump v. United States, Justice Clarence Thomas asked where in the Constitution any form of immunity was to be found. That, as ever, was the correct question. And the correct answer is “nowhere.”

 

When one points this out, one is usually met with an argument from practicality: “But,” the cavilers cry, “without immunity, our former presidents could be the target of politicized prosecutions!” And . . . well, yeah, they could. But, as a constitutional matter, that isn’t really relevant, is it? The Constitution is law. It means what it means, and if what it means isn’t working, then it can be amended — not by the Supreme Court, but by the people. Last week, I listened to the nine justices of the Supreme Court discuss this issue, and I was irritated to observe that most of their time was taken up with the consideration of consequences. “If the president is immune, then what?” “If the president is not immune, then what?” “What about his private conduct?” “What about the public decision-making process?” “What about the public’s expectation that the executive branch is honest?” In a vacuum, these are fair questions, but it is simply not the role of our courts to consider them at any length. The role of our courts is to look at the text of the Constitution — and to the ratifying public’s original understanding of that text — and to pronounce without fear or favor what it means, leaving the rest to the political branches. If the Constitution is creating problems for those branches, then so be it. It is not the Supreme Court’s job to clean up our cultural messes.

 

That the Supreme Court has, at various points in our history, chosen to involve itself in this area should not alter that fact. It is telling that the cases and laws that were bandied around last week all came from the recent past. We heard about United States v. Nixon, and Operation Mongoose, and the Vietnam War, and the Administrative Procedure Act — all of which arrived not during the early republic but after the New Deal. As a rule, originalists do not find “but the Court has already made stuff up in this area” to be a persuasive riposte, and they ought not to here, either. If the Court has made false declarations in the past, those false declarations must be reversed. It is true that, at the time of the Founding, there were not many federal laws from which a president might plausibly need immunity, but it is also completely irrelevant. Over time, Congress has added significantly to our body of laws. If that decision is causing trouble, it is up to Congress to provide the remedy.

 

Ultimately, every hypothetical that has been raised in this case represents a challenge to our national legislature. As it is the role of Congress to impeach a president who can legitimately prevent his own prosecution, so it is the role of Congress to clarify the law if the law has made a mess of the government. I am not insensitive to the idea that our modern Leviathan presents problems that did not exist in 1789, or to the claim that we now have a problem with political retribution, or to the notion that partisanship has deranged our tripartite system. I am, however, deaf to the claim that these matters should be superintended by the judiciary where the Constitution does not directly touch on them. If, for whatever reason, the president of the United States needs to be excluded from certain federal laws, then our lawgivers ought to exclude him. If, for whatever reason, some of our statutes needs massaging to avoid their abuse, then our statute-makers ought to massage them. This, as is so often the case, is a question of prudence; it needs a scalpel, not a broadsword. To demand that, because Congress will not, the Supreme Court must address a live political controversy by finessing the interpretation and application of a constitutional provision that does not, in fact, exist, is in effect to give up on self-government. Why, I’ll ask again, would anyone wish to do that?