Presidential Immunity--Worse Than Watergate Meets Worse Than Hitler.

Fight over Presidential Immunity shows Democrats' Lawfare against Trump and others appears to be reaching its peak.

On Tuesday of this week, January 9, 2024, former President Trump’s appeal from Judge Chutkan’s denial of his claims of Presidential Immunity were heard in the District of Columbia’s Circuit Court of Appeals, commonly called the “DC Circuit” in legal circles. Just as with just about every position they hold these days, during the appeal, Democrats have mocked both Trump’s position and Constitutional principles, all while taking actions that are historically unprecedented. This week, however, we witnessed what appears to be a new low. Hopefully it represents the peak of their assault on the Constitution and a return to the rule of law.

Before turning to whether we have reached a turning point, consider that Presidential Immunity, or immunity of Federal (and State and local, for that matter) government officials for acting in furtherance of their official duties is not a recently concocted crackpot theory. It has deep historical underpinnings in Western civilization and is based on sound policy considerations. In summary, if government officials may be sued or indicted for carrying out their governmental functions, then bad actors can cripple the operations of the government. One need only consider that criminal prosecutions of political rivals is the norm in just about every banana republic that has existed throughout human history. Moreover, it takes little to no imagination to envision how many civil lawsuits public officials would face trying to conduct the People’s business, thus crippling day to day government operations and discouraging competent people from being willing to serve, among many, many other things.

Keeping this in mind, consider as well that it is well settled law that the President, as well as other Federal government officials, generally may not be sued in civil court for their governmental actions (some of that immunity has been waived by statute). This was first concretely established (albeit generally known and accepted) in cases following Watergate such as Nixon v. Fitzgerald. This doctrine continues to this day. For example, the principle has been applied recently for Senators such as Elizabeth Warren when the defamation case brought by the Covington Catholic High School kids was dismissed because her speech was protected by sovereign immunity because she had acted within the scope of their employment.

Considering the practical and legal bases for civil immunity and criminal immunity are the same and likely heightened with respect to criminal issues, it is not a stretch to imagine that these same principles bestow upon governmental officials various types of criminal immunity as well. History supports this view because in 234 years of unbroken historical practice—from 1789 until 2023—no President has ever been indicted for his official acts. No prosecutor, whether state, local, or federal, has ever asserted this authority nor attempted to exercise until now. As a direct result, no court has had occasion to address whether Presidential Immunity includes immunity from criminal prosecution for his official acts.

In addition, as courts, including Nixon v. Fitzgerald, have uniformly recognized, because the President “occupies a unique position in the constitutional scheme,” it is entirely logical that the President might enjoy certain immunity not bestowed on other Federal officials. After all, as that court explained, because Article II, Section 1 provides that the “executive Power shall be vested in the President:”

“This grant of authority establishes the President as the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity.”

In other words, the President is the Executive Branch; all other Executive Branch officials serve the President and are there to assist the President in carrying out the executive functions of the Federal government at his or her direction. Because a criminal indictment necessarily would interfere with the functioning of the Executive Branch of the Federal government, not surprisingly, the Department of Justice has had a continuing policy since the 1970s that sitting presidents cannot be indicted. In summary, this is the general basis of the Presidential Immunity doctrine.

While the Constitution’s text does not specify that the President is immune from criminal liability, it does have something to say about the prosecution of Presidents. Article I, Section 3 provides:

Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.

Thus, per the Constitution, no one disagrees that Presidents that have been impeached and convicted in the Senate pursuant to the impeachment power are “subject to indictment, trial, judgment and punishment, according to law.” The question, which has never before been raised, remains whether a President may be indicted for acts taken in furtherance of his Presidential duties.

Now that we are clear on sovereign immunity for Federal officials generally and Presidential Immunity specifically, we are ready to proceed to considering the recent oral argument in the DC Circuit. As discussed above, there are serious and complicated Constitutional, legal, and policy considerations at play. In light of this, one would have expected something more sophisticated than “no one is above the law” or, one of Judge Chutkan’s personal favorites, the United States doesn’t “Kings.” One might think, but one would be severely disappointed. During the presentation, Judge Florence You Pan, a Biden appointee, in what appeared to be a pre-planned assault of Constitutional principles, could not help herself from turning the hearing into a sound bite frenzy. Early in the argument, she asked Trump’s attorney John Sauer what the Left has hailed as a “brilliant question”:

PAN: Could a president order SEAL team six to assassinate a political rival? That’s an official act.

SAUER: He would have to be, and would speedily be, impeached and convicted before the criminal prosecution.

PAN: But if he weren’t, there would be no criminal prosecution, no criminal liability for that?

Sauer then tried to explain the Founders basis for the impeachment clause, but Judge Pan was determined to maintain her ruse. The exchange continued thusly:

PAN: I asked you a yes-or-no question: could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached… Would he be subject to criminal prosecution?

PAN: So your answer is no.

SAUER: My answer is qualified, “Yes.” There is a political process that has to occur under the structure of our constitution, which would require impeachment and conviction by the Senate in these exceptional cases . . . .

There are many things wrong with this legal moment. Among many other things, we are taught from our initial days in learning the law that courts do not, and should not, reach into considerations of facts not before the court. No one is discussing a sitting President ordering a SEAL team to assassinate his political rival. On the contrary, we are not talking about any crime as obvious or as serious as that.

Jack Smith’s indictment concerns actions Trump took under the Electoral Count Act of 1877 to challenge Biden’s certification under the 12th Amendment on January 6. In a rational world, Democrats and the Media might stop to ponder why the first President in United States history to be indicted is being done so for crimes no one can explain without reference to a library of legal books. Using murder as an analogy was beyond disingenuous on Judge Pan’s part. But playing to the partisans and trying to create cable news or Twitter soundbites increasingly is what Democrat and anti-Trump (not the same) judges do. Worse than Watergate, meet worse than Hitler—Trump thinks he can use the government to assassinate his rivals.

Democrats and Media (as if there is any difference today), of course, played their part and amplified Judge Pan’s childish conduct and idiotic analogy. A complete list is beyond the scope of this article (or a book or set of encyclopedias). The Hill, claimed: “Trump team argues assassination of rivals is covered by presidential immunity.” Not to be outdone, Mediate claimed “Trump Lawyer Argues Presidents CAN Order Seal Team 6 To Assassinate Rivals In Stunning Appeals Courtroom Exchange.” Democrat politicians were not going to be left out. Thus, Maryland’s Jamie Raskin, a tell for Democrat and Constitutional hoaxes, raced to CNN to tell Wolf Blitzer on CNN:

As a member of Congress, my first thought was, well, then if the president is going to order out for the assassination of his political rivals, and say there’s a narrow margin in the Senate of a two or three vote in the opposition party, what’s to keep him from murdering members of the Senate to make sure that he doesn’t get convicted there in order to deny a two-thirds majority?

Raskin later repeated his baseless claims in the House. You can watch and listen here. This is not a good faith or remotely serious way to discuss complicated Constitutional and policy issues that matter dearly for our Constitutional Republic. But, once again, this is just about the only way Democrats wish to address such things.

While this moment was yet another short term victory for the Left considering the “Seal Team 6” hypothetical flooded the Fake News Media Bubble over past few days, it feels as if the silliness of it all likely dawned on those that dislike Trump, but that have retained their sanity. At some point, we truly are going to have to consider whether we have Constitutional government.

Win or lose, this probably is Trump’s final act in American politics. When he is gone, we have a chance to return our political debates to some level of rational debate. This might well be the starting point because if Trump’s legal team is correct about Presidential Immunity, it would end all the criminal prosecutions against him as well as keep others for whom the statute of limitations has not run secure.

The debate is not whether a President can be prosecuted, but how the decision is made and by whom. Biden and Democrats claim is should be by the whim of any prosecutor or at the direction of a rival President. Trump and Constitutionalists such as myself say it is a decision left to the People via the route of the impeachment power.

In neither instance is anyone arguing that a President that breaks an agreed law, such as laws against assassination, cannot be prosecuted. We differ on the manner in which the decision is made.

It is important, indeed critical, to note that only one side is making a genuine argument based on all the relevant Constitutional, historical, and policy considerations. More importantly, only one side’s positions respects the traditional checks placed on potential abuses of power. But, most important of all, just one side does not need to misrepresent the position of the other side, while simultaneously gaslighting its own supporters.

It feels like the Left’s war on the Constitution, the Rule of law, and the American way might just have reached its high point as the tide of rational thought and the brilliance of the Constitution counterattacks. Fitting that this would come to light on the even of a Presidential campaign. Democracy is not on the ballot in 2024, but Constitutional government is.