Unlike the USSC, I believe that presidential immunity was too great before their decision to expand it to practically anything a president does that might deemed “an official act.” (And certainly it’s too great after that inexplicable decision was made.)
I want every POTUS (or his legal counsel at least) to worry about every decision he makes–whether it’s legal, whether anything in it might result in his impeachment or indictment, etc. There are enough safeguards built into the legal system–getting a grand jury to buy into indicting him, the presumption of innocence in a trial, to name just two–that he is protected against a vindictive successor or a rogue DA somewhere pinning a false charge on him.
If I had my way, presidents would face trial following their administrations routinely, or at the very least would have to mount legal defenses seeing that such charges are dismissed, simply because they so frequently violate the law and get away with it. As far as I’m concerned, it should be the cost of doing business as a President–close scrutiny of all of your actions for years following your administration. Over 90% might get dismissed but it’s still healthy scrutiny, and it’s healthy that a President should justify his actions in a court of law.
I think that the recent presidential immunity is like qualified immunity - it is great in theory but goes too far in protecting obviously illegal acts. If a President asks their Attorney General if they can take a troublesome Senator and shoot him in the face then cover it up then that should not be open to immunity. If there is evidence that their opponent in the next election has committed a serious white-collar crime and the President discusses with the Attorney General as to whether or not they should pursue prosecution then the President should not be afraid that that run afoul of some law somewhere.
I think that there does need to be some level of immunity, for example the president should be allowed to order troops into battle knowing that some of them won’t come back and not be indicted for negligent homicide. The system we had before more or less worked for 200+ years because on the one side most presidents didn’t criminally abuse power, or if they did they got mired in scandal or impeached. On the other hand presidential opponents didn’t launch frivilous indictments against former presidents for just doing their job.
But now we have had a president who flagrantly violated the law in multiple ways and was in no way held into account on by the political process. Meanwhile we also have a party that shows no compunctions about throwing asside standard norms and using whatever powers at its disposal to attack the opposition. Without the immunity clause I could easily see Texas charging Biden with obstruction of justice for interfering with Texas’ border control efforts. Pick a sympathetic judge and a partisan jury and who knows they might even get a conviction.
The ways in which the supreme court in my opinion went too far is first in saying that the motives for an action can’t be taken into account in determining whether a use of power is an official act. Sending an hit squad to kill a terrorist should be treated differently from sending a hit squad to kill a Senator.
Secondly expanding executive privilege to the point that even if an action wasn’t part of his official role it can’t be investigated it the evidence fell under the official umbrella means that all a president has to do is temporarily hire any potential conspirators into the executive branch and he can ask them to do whatever he wants.
That’s what Congress is for, not the courts. Congress has the responsibility of oversight.
Your whole proposal here is to make an end run around Congress because it failed to convict a particular president - twice. When Congress fails, it falls on the electorate to correct the problem.
And now, faced with a very real possibility that 45% or more of the electorate might successfully re-elect that individual, and the representatives that support him, you want to do an end run around our elections.
Everything touted as an advantage, I see as a disadvantage. The President already has to justify his official actions in court - when they affect civil rights. I don’t think threatening him with personal civil/criminal liability adds any value.
I know that in practice they often or usually get away with it, but in Argentina, Mexico, etc. where they did have people killed, was it “legal” under some “senatus consultum ultimum” or purely a black op?
All this shit has real-world precedents, in any case.
I doubt that anyone would even take the office in the first place under those conditions, unless they fully intended to become a dictator or were an idiot.
I think that is what the SCOTUS wants to avoid. They feel the president cannot do his/her job if they are constantly worried about being prosecuted for their decisions.
Somehow we made it near 250 years without this being an issue but now the SCOTUS thinks the president needs unique protection from their actions. But, here we are.
Here is the thing about the Supreme Court’s decision. It doesn’t have any affect on Coups that are successful. If you become dictator for life you aren’t going to be prosecuted with or without this decision. What it allows is to prevent any consequences for unsuccessful coups.
Exactly why I want every President to be terrified that he will prosecuted for planning, encouraging, hinting to underlings that he wants a coup. I mean terrified. I mean, warning his staff weekly that no discussions of anything resembling a coup will be tolerated.
I think we can all agree that impeachment is a political process not a legal one.
Cites: Bill Clinton was acquitted of perjury by the Senate yet still convicted of it by an Arkansas court. IIRC SCOTUS’s ruling implied that though Trump was acquitted by the Senate for insurrection, he was still accountable under Section 3 of the 14th Amendment should he be found guilty in federal court of the insurrection code.
And the Confiscation Act of 1862, which predated Section 3, effectively provided an additional procedure for enforcing disqualification. That law made engaging in insurrection or rebellion, among other acts, a federal crime punishable by disqualification from holding office under the United States. See §§2, 3, 12 Stat. 590. A successor to those provisions remains on the
books today. See 18 U. S. C. §2383