I had hoped the Supreme Court would hear this case, and on an expedited basis. That’s because the issues presented in the case lie at the very core of our Constitutional separation of powers.
The Supreme Court has stated that the question before it in this case is “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” As we know, the allegations of wrongdoing against President Trump stem from his alleged conduct on Jan. 6, 2021.
As the Wall Street Journal has observed “… in Nixon v. Fitzgerald, the high court held that a president enjoys absolute immunity from civil suits predicated on his ‘official acts,’ even if they fall foul of ‘federal laws of general applicability.” Justice Lewis Powell wrote that such immunity is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Such lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.” (WSJ, Rivkin @ Foley. 3-1-24).
In fact, the Nixon Court specifically noted that “the greatest public interest isn’t in enforcing ordinary statutes against the president.” Rather, immunity is necessary to ensure he has “the maximum ability to deal fearlessly and impartially with the duties of his office.” (WSJ).
We recall President Trump has vigorously and repeatedly contended that the 202o presidential election was a fraudulent election and that all of his actions on Jan 6, 2021, were fully appropriate in light of the constitutional requirement that a president “take care that the laws are faithfully executed.” This obviously includes election laws.
While Nixon was a civil case involving a lawsuit, the Supreme Court has decided it will now address whether these constitutional considerations require immunity from criminal prosecution as well. The Nixon Court ruled that a president has “absolute immunity” for lawsuits for civil acts, even those at the “outer perimeter” of his official duties. Otherwise, such liability could cause a president to pause and/or chill certain of his actions as president if he could be civilly liable for them.
Well, this analysis would also obviously apply to criminal prosecution and with arguably greater force.
Things are highly partisan in these times and President Trump’s enemies have resorted to lawfare against him because they don’t believe they can defeat him on election day. They will literally do anything to stop him from being reelected including abusing both the civil and criminal law.
So, the question really becomes this: if civil lawsuits—which usually involve a resolution based upon money paid to the aggrieved party for damages—could materially alter the way a president conducts the duties of his office, wouldn’t the threat of criminal prosecution have an even greater chilling effect on him?
The precedent for criminally prosecuting a former president has now been set by highly biased special counsel, Jack Smith. Do we really believe that Republican prosecutors will not turn on the next Democratic president in exactly the same way? They will. As President Trump has stated regarding the absence of immunity from criminal prosecution as it pertains to President Biden, “Joe would be ripe for indictment.” Indeed, Pres. Biden should be praying fervently for presidential immunity from criminal indictment.
Special Counsel Robert Hur recently concluded Biden ‘willfully retained and disclosed classified military and national security information’—making out the elements of a crime—but concluded Biden wouldn’t be criminally charged even after he leaves office because his memory is so poor and his mind so blown that, essentially, he couldn’t effectively work with counsel to assist in his own defense. (But he’s fit to be president?!).
This question of presidential immunity is important far beyond President Trump.
Again, Jack Smith, the partisan who spent 3 years and millions of dollars attempting to charge Trump with insurrection on January 6th, was unable to find evidence to even charge him with incitement, never mind insurrection.
Every one of these highly strained, legally unprecedented attacks on Trump’s candidacy are not only a threat to him but, more importantly, to the American people and our democratic form of government—and the sacred and inviolable right we citizens have to choose our leaders.
This is election interference at its worst and must be stopped.
Shreveport attorney, Royal Alexander, worked in D.C. in the U.S. House of Representatives for nearly 8 years for two different Members of Congress from Louisiana.