The Supreme Court’s Monday ruling on presidential immunity from criminal prosecution didn’t offer boundless endorsement of the manager officeholder’s prerogative to do whatever he wants without fear of consequence.
But it got here far too close, holding that the Constitution “entitles a former President to absolute immunity from criminal prosecution for actions inside his conclusive and preclusive constitutional authority.” He is further “entitled to at the very least presumptive immunity from prosecution for all his official acts,” the court’s majority continued, though there’s “no immunity for unofficial acts.”
Exactly where our justice system will draw the road between official and unofficial stays to be seen. It’s still possible that the acts alleged here—former president Donald Trump’s attempted interference with the 2020 election—could also be deemed unofficial, permitting his prosecution to maneuver forward. This could also be less a victory for Trump than he has claimed.
But put aside Trump and the official-unofficial distinction to take into consideration this ruling’s larger implications. The president’s constitutional duties, as Chief Justice John Roberts’s decision observed, “are of ‘unrivaled gravity and breadth.’” Bracketing off unofficial acts is a great start, but it surely is simply that.
And while stable governance may require us to guard a sitting president from prosecution in order that, because the court said, he can do “his constitutional duties without undue caution,” extending that protection for the remaining of his life shouldn’t be only excessive but wildly dangerous. It says we must ultimately rely on nothing but presidential character for good governance in lots of necessary matters. It says we must always cross our fingers and hope probably the most powerful man on earth decides to behave himself.
I’m not a constitutional scholar, and I can’t confidently assess the alarming claims in Justice Sonia Sotomayor’s dissent. But I don’t think such expertise is vital to see the essential problem here. You simply have to know what individuals are like. You simply have to know concerning the Fall. You simply have to know, because the King James Version of my childhood put it, that there “is none righteous, no, not one” (Rom. 3:10), that our hearts are susceptible to be “deceitful above all things, and desperately wicked” (Jer. 17:9).
This is true of every of us, after all. But the very power of the office of the presidency offers the unique opportunity to exemplify the evils that the apostle Paul mentioned in the remaining of Romans 3. To quote Roberts’s opinion, the president is constitutionally tasked with
commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. He also has necessary foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. Domestically, he must “take Care that the Laws be faithfully executed,” and he bears responsibility for the actions of the various departments and agencies inside the Executive Branch. He also plays a task in lawmaking by recommending to Congress the measures he thinks clever and signing or vetoing the bills Congress passes.
What a remarkable lot of occasions that list provides for one’s tongue to practice deceit, for one’s feet to be swift to shed blood, for wreck and misery to mark one’s ways, for the way in which of peace and the fear of God to be unknown in a single’s thoughts and deeds (Rom. 3:13–18).
What a whole lot of occasions, that’s, for a president to commit sins—and crimes.
I’m not wholly convinced that prudence requires us to say presidents can’t be prosecuted while in office. As a matter of politics and scriptural record alike (Is. 10:1–2; Is. 49:26; Ezek. 45:8–9; James 3:1), my instinct is to heighten scrutiny and vigilance wherever power accumulates, the White House very much included. Other countries with similar systems of presidency already allow greater judicial accountability for his or her leaders, including (at the very least in theory) for sitting officials. We could too.
Still, even the lesser threat of post-office prosecution could function some check on presidential wrongdoing, and the president’s constitutional purview shouldn’t be excluded from that accountability. Many of the president’s constitutional duties are literal matters of life and death, war and peace, assassination and torture and extrajudicial imprisonment. These are precisely the matters that require accountability most.
There is a reason we predict of war crimes as a definite—and distinctly serious—category of official evil. I care far less about presidential tax fraud than I do a couple of presidential drone strike on a 16-year-old American boy who was never accused, let alone charged, with any crime.
The “only fix” here, MSNBC pundit Rachel Maddow said in response to the court’s decision, is “to place someone within the White House, from here on out, who is not going to abuse the absolutely tyrannical power they’ve just been legally granted in perpetuity.”
Happily, Maddow is fallacious. There is one other fix. Though we must always actually elect presidents with integrity, the framers of the Constitution didn’t design our government with such anthropological naiveté. They left us other options. Namely, Congress could act to meaningfully constrain presidential power.
It might take a constitutional amendment to directly reply to this decision, but not necessarily, if history is any guide. And if every partisan ceaselessly carping about the opposite side’s abuses of power could develop a single ounce of foresight, a congressional fix might stand an actual political likelihood.
That’s undoubtedly wishful considering, but it surely’s a wish I proceed to carry dear. To borrow from Lord Acton in a lesser-known portion of his famous letter on the corrupting influence of power, we’re silly to guage presidents “unlike other men, with a favourable presumption that they did no fallacious. If there’s any presumption it’s the opposite way against holders of power, increasing as the ability increases.”
A government built on the belief of its leader’s good character is a government badly built.
Bonnie Kristian is editorial director of ideas and books at Christianity Today.
