I doubt I’ll get much argument from TPM readers when I say that the Supreme Court’s decision in Trump v United States, the immunity decision, is among the Court’s most corrupt decisions. But even many of those who recognize the fraudulent and anti-constitutional character of this decision still often agree that it would be a bad thing if ex-presidents were routinely or even frequently brought up on charges for their actions as president. Or, more specifically, they think it would be a bad thing if such charges became part of a partisan game of tit-for-tat in which presidents who had not abused their office were brought up on frivolous charges as a matter of partisan payback.
In this post I’d like to ask you to question that assumption. Of course, I don’t want the justice system abused. I don’t want anyone brought up on bogus or frivolous charges. But this is a risk we should be willing to take, and, more specifically, it should be one we ask anyone who wants the job of president to accept.
As usual, some history is helpful to frame the question. It’s not simply that the Court manufactured a presidential immunity with no constitutional basis. If you look at the creation of the U.S. Constitution, it’s fair to say that its authors gave close to no thought to the need to protect presidents even from frivolous prosecution or that fear of potential legal accountability might make it difficult for presidents to do their job. The entirety of the debate was about protecting the people from the president, not vice versa. After all, the president is the one with the vast powers. The only model the Constitution writers had of robust executive power was the 18th century monarch, and they were struggling to find a way to make use of that power for republican ends, a republican version of that kind of power which was nevertheless limited and accountable. The people give that person vast powers and trust them not to abuse those powers. The president must extend that same trust to the public after they surrender that power.
One historical moment which has shaped my thinking on this question comes via letter correspondence that Thomas Jefferson had with a man named John Colvin, who was essentially ghost writing a book for a general involved in the apprehension of Aaron Burr during the Burr conspiracy. These questions involve Jefferson, but Colvin also wants to sound Jefferson out on the question of whether it is ever permissible or, more to the point, obligatory for an official to violate or go outside the law. Jefferson pens this very interesting letter, sometimes addressing what a president should do in these cases but often speaking more generally about any high public official. His answer is that yes, it’s not only sometimes permissible but sometimes obligatory. Indeed, it can only really be permissible in cases in which it is obligatory. He explains that the head of state or high officer has a profound responsibility to protect the people and the state, and there are situations the law simply cannot have anticipated.
So far this is a conventional argument we hear often today. But with a fundamental difference. It never seems to occur to Jefferson that a president might be immune from the consequences and strictures of the law. He says that that presidents and other high officers must be prepared to take this kind of action knowing that they are risking their own liberty by doing so. And when they do it, they must then throw themselves at the mercy of the public, which hopefully will see the necessity of their actions and essentially forgive it.
Here are some of the key quotations making this point …
“The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the Constitution, and his station makes it his duty to incur the risk.”
“It is incumbent on those only who accept of great charges, to risk themselves on great occasions, when the safety of the nation, or some of its very high interests are at stake.”
“[T]he good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives.”
To Jefferson, this is one of the great sacrifices of public office, that you may be obligated to risk your own liberty, risk imprisonment to protect the republic.
We can of course draw from this the obvious point that Jefferson clearly didn’t think presidents were immune from the law. We are talking here very specifically about acts of state, official duties, things that John Roberts and the corrupt majority believes must be granted immunity. Jefferson, of course, isn’t the Constitution. He was in France serving as ambassador when it was being drafted, though he was in touch with James Madison. But he is still a good proof point about how the founding generation thought of these questions. And he had served two terms as president.
The larger point is that presidents serve the republic. They don’t own it. And it comes with risks. I have relative confidence that a government would have a hard time getting a conviction of a future ex-president on frivolous charges. But I’m willing to take the risk that they might succeed. You might say, well, that’s an easy risk for you to take, Josh. It’s not you. And you’re right. I’m not running for president. I will never be president. I will never hold that almost unimaginable power and responsibility. It’s a lot to ask of someone. But with great power comes great responsibility, as we all know. When I’ve argued this to some people they will say: But you want the best people to run and this will dissuade a lot of people from running for office. If you think this, I doubt you’ve ever met a presidential candidate. It won’t dissuade them. They’re un-dissuadable. For anyone who feels this, no one made them be president. It’s one of the risks, a form of service in itself.
To be clear, I certainly don’t think it would be a good thing to have a list of future presidents brought up on real or specious charges. Hopefully presidents won’t break the laws or violate the Constitution. It’s certainly not great if innocent former presidents get dragged through the courts. But it’s a risk we should be more than ready to take. As we have seen so vividly in the last 18 months, an American president has an almost unimaginable amount of power, all the more so under the perverted doctrines of “unitary executive theory” and with a degenerate rogue president leaning into that perverted authority. Post-presidential vulnerability is a necessary counterweight to that.
Would it be a bummer to see honorable former presidents we admire put through that? Yes. But no one made them be president. It goes or should go with the territory. It’s also in line with the thinking and fears of the men who created the Constitution and those who ratified it.