Is a president above the law?

The criminal prosecution of former president Donald Trump tests the intersection of two fundamental principles of American democracy, as we see in this week’s ruling on presidential immunity from the U.S. Court of Appeals for the D.C. Circuit.

On the one hand, no man is above the law, including the president or a former president. We are a government of laws, not of men. We believe in equal justice under law, the phrase carved in marble over the entrance to the U.S. Supreme Court. The high and mighty receive the same treatment as the humble and common—lady justice cannot see rank or privilege through her blindfold. Justice comes for the common street-corner drug dealer just like it comes for Hollywood mogul Harvey Weinstein or lifestyle icon Martha Stewart.

On the other hand, we are not a crackpot republic. Our leaders are democratically elected; they are not tin pot dictators, presidents-for-life, or generalissimos. Our former presidents are respected, even revered, as elder statesmen. They are not generally seen as post-partisan, as when Jimmy Carter built houses with Habitat for Humanity or George H.W. Bush and Bill Clinton teamed up to raise funds for hurricane relief. We cheer for them at the start of baseball games they attend—we don’t prosecute them.

There was a great public hue and cry to prosecute Richard Nixon after he resigned the presidency following Watergate. Gerald Ford pardoned Nixon, short-circuiting any prosecution, which in retrospect most historians agree was the right call, even if it was politically unpopular at the time.

Absent the pardon, Nixon would almost surely have been prosecuted for obstruction of justice—doing something illegal and using the power of White House to do it. That seems different in kind from what Trump did. Smith indicted Trump for his efforts to delay or deny certification of the 2020 election results. The Smith indictment charges him for activities such as his conversations with Vice President Mike Pence, his speeches to citizen activists, his statements to or toward state legislators and election officials, and his conversations with the U.S. Department of Justice about election fraud. Even if the motive for these decisions was political (his desire to secure his reelection), they certainly look like official acts. And we have rightly given presidents a wide berth of legal insulation when it comes to official actions.

But even a wide berth is not total, automatic, universal immunity for official acts. If a president ordered a Marine to shoot someone, he may be acting in his official capacity as commander-in-chief, but if the someone being shot is a person known to be having an affair with the first lady, it’s still murder, and obviously the president would be criminally liable for that “official order.” That’s the Nixon situation—if the president ordered White House aides or Cabinet officers to cover up a burglary, thus obstructing justice, he would be liable for that obstruction even if he issued the orders while in the Oval Office to a group of government employees.

At the same time, presidents cannot be under a constant barrage of civil lawsuits and criminal prosecutions, especially in this era of politicized prosecutors (including some elected with the backing of George Soros). Presidents need to make difficult calls, often under intense time pressure. They occasionally have to operate in legally gray areas. Think of President George W. Bush and the legal memoranda on detainee interrogation (i.e., waterboarding). The lawyers at the U.S. Department of Justice said it was legal. He went ahead with it. Other lawyers disagreed when the memos became public, and the memos were eventually withdrawn. Should Bush be liable for assault and battery against the terrorists because a future court finds that the first set of lawyers were wrong and the second set right? Clearly not.

Trump’s actions in January lie somewhere on that spectrum between Nixon and Bush—not obvious policy decisions like Bush’s treatment of detainees, but also not obvious criminal acts like Nixon’s obstruction related to a burglary. My own inclination is to give our presidents a strong buffer of protection in this regard—I think it is better for our polity, our constitutional order, not to have a bevy of civil lawsuits and criminal prosecutions against presidents and other civil servants once they leave office. The tools of politics—oversight hearings, news media stories, even congressional censure or impeachment—are much more appropriate than jail time for disagreements over politics.