Protecting the presidency

The criminalization of political disagreements has deep costs for the health of our republic. Sometimes politicians commit actual crimes for which they should absolutely go to jail. Just remember U.S. Rep. William Jefferson, D-La., who took almost $500,000 in cash as bribe money to push arms deals for certain African governments. He rightly went to jail for 13 years. Compare that situation with the federal criminal charges against former President Donald Trump—that he spoke to the acting attorney general (a member of his Cabinet), state public officials, and the general public about alleged election fraud. The two are utterly unalike, yet it’s too easy to treat both as “public corruption.” Thankfully, a strong Supreme Court opinion by Chief Justice John Roberts helps restore the fundamental constitutional principles for official conduct and misconduct.

When the president acts within the core of his Article II powers (Article II is the section of the U.S. Constitution creating the executive branch), the court held he does so with absolute immunity from criminal prosecution after the fact. It’s helpful in these circumstances to de-Trumpify our examples. When President Barack Obama ordered a drone strike on a terrorist in a foreign country to protect the United States, we don’t want him sitting in the Situation Room in the basement of the White House wondering, “Will I be prosecuted for murder if a libertarian or isolationist Republican succeeds me as president?”

Nor does the opinion allow prosecutors to circumvent this immunity by delving into the president’s motives at the moment of decision. The president wears many hats simultaneously, and this is by constitutional design. The president is head of state, head of government, and commander in chief but also head of his party or perhaps a candidate for reelection. When the president orders military action, we don’t want courts asking later whether he was really trying to distract from a domestic political problem, as in the movie Wag the Dog.

Such a policy does not remove all checks and balances from the president, as Justice Sonia Sotomayor predicted in her dissent. Indeed, potential criminal prosecution has never been a primary check on presidential power in our system. There are still several formal checks (primarily impeachment and congressional oversight) and informal norms (concern for one’s historical reputation, the willingness of White House staff and Cabinet to do one’s bidding) that will keep presidents on the generally straight-and-narrow path.

Many of the precedents discussed in the court’s opinion come from difficult eras earlier in American history, especially from the presidencies of Richard Nixon and Bill Clinton. Yet “[t]his case is the first criminal prosecution in our Nation’s history of a former President for actions taken during his Presidency.” Hopefully, it will also be the last. As the Nixon and Clinton experiences showed, the nation manages to move on from even the deep moral failures of its presidents, in part because our political system is not wholly dependent on the occupant of the Oval Office. Our Constitution wisely splits power among multiple officers, such that even the disastrous self-destruction of one does not imperil the system as a whole. I worry that the ability to heal will be undermined if we see continued criminalization of political disagreement with prosecutions once a president leaves office.

Practically, the Supreme Court’s decision returns the case to the trial court for further development of the facts. The opinion creates three categories: core presidential acts, peripheral presidential acts, and unofficial acts by persons who are president. That third category may include criminal behavior for which prosecution is possible.

The trial court must now go through special counsel Jack Smith’s indictment and figure out which charges fall in which categories and if there is anything left of his case after that exercise. That process will take time, meaning any next substantive step in the case will likely come after Election Day.

At the end of the day, the Supreme Court’s decision is an important safeguard for presidential policymaking. We elect presidents to make difficult choices in challenging circumstances. It will handcuff their freedom of action if they make those choices while fearing a pair of actual handcuffs years down the road, whether it is President Obama with drone strikes or President George W. Bush with enhanced interrogation techniques at Guantanamo Bay. Our political disagreements should be handled at the ballot box, not in the jury box.