Gordon L. Weil
Two events – seemingly unrelated – reveal a major historical
change taking place right now.
The first is the U.S. Supreme Court decision on presidential
immunity. The second is the heightened public
sensitivity, caused by Joe Biden’s personal crisis, to the risks of our heavy dependence
on the single person who holds the presidency. The two are related.
Despite the belief that the Court decision was about a group
of partisan justices showing their barely hidden support for Donald Trump, it
was far more significant than that. It was a sharp turn in the history of the
country. What the Court decided applies
to all presidents.
The question before the Court was the extent that a
president – any president – is immune from criminal responsibility for their
acts while holding the office. It said
there were three areas of presidential activity related to immunity.
First, when the president has been given power under the
Constitution or acts of Congress and acted in line with that authority, they
would be completely immune from charges.
Second, where the president acted at the “outer perimeter” of
their legal authority, they are presumed to have immunity, though that
presumption can be tested in court. Charges
would likely be brought by the Justice Department, an agency under the ultimate
control of the president, who might assert immunity and prevent prosecution.
Third, if the president acts outside of their authority,
they would have no immunity from prosecution.
Trump’s counsel has asserted that a president, as the commander in
chief, could order the military to kill his political opponent and could not be
charged with murder unless they were first impeached for the act.
Who decides on the type of presidential activity in question? The Supreme Court’s answer is that the
decision is made by the federal courts, and would inevitably end up at the
Supreme Court. If you had any question
about checks and balances, here’s the proof they are dead.
This decision departed from the foundation of the country as
laid out in the Declaration of Independence. The basic reason for the
Declaration was to reject the unlimited power of the British king, who could do
no wrong. He was subject to no checks. The
basic message of the Court decision is that the president can do no wrong,
unless the Court decides otherwise.
The new decision does not overrule the power of Congress to
impeach a president, but the Constitution makes it clear that impeachment is
not punishment and does not decide the question of criminal responsibility.
Now, turn to Trump, who has promised his administration
would take legal action against Biden and exercise unprecedented executive
authority, and Biden, whose uncertain physical and mental health could lead him
to similarly unrestrained use of power. The
possible actions of either of them gives heartburn to a significant portion of
the population.
To be sure, the U.S. has little history suggesting that
presidents normally carry out criminal acts.
And the issues surrounding the possible excesses of this year’s
candidates may be an historical warning to avoid taking big risks in choosing presidential
candidates.
If the possibility of presidential felonies is rare, the
Court’s decision could have an effect that is more theoretical than real. But its thinking may represent something more
essential than White House criminality.
We may be focusing too much on Trump and too little on the
fact that he has wide, popular support.
Many of his backers seem to favor a more authoritarian government,
though a limited one. They appear to
want government to be both narrower and deeper.
Support for stronger central rule and less popular democracy
is not limited to the U.S. Though the
left-of-center Labour Party won the most seats in the British Parliament,
conservatives got more popular votes. In
the French elections, the conservatives equaled the moderates and left. The
same is happening in Germany, the Netherlands, Hungary and Slovakia.
The Court’s decision may reflect a landmark, generational
change. Post-World War II liberal democracy is losing ground to more
authoritarian and nationalistic politics.
International agencies are weakening.
National governments are challenged both as regulators and service
providers.
Because the Supreme Court has assumed a right to have the
last word, not specifically given it by the Constitution, it may have turned itself
into a prime political issue. Congress
was supposed to be the dominant branch of the federal government, but it has
let its powers slip away. A powerful
president and an unchecked Supreme Court continue to rise.
The Court is dominated by a well-disciplined philosophy and is
not the neutral umpire we were promised by Chief Justice John Roberts. Just as compromise is missing in Congress, it
is missing at the Court.
These developments place us at an historical turning point, which demands our attention and concern.
