Immunity For Me But Not For Thee

Authorized by William Woodruff via The Epoch Times (emphasis ours),

Whether Presidential Immunocity is simply a Good Thing or a Bad Thing Shouldn’t Depend Upon organization Affiliate

“Whether and if so to what degree does a erstwhile president enjoy presidential immunity from criminal authorisation for conduct alleged to invest authoritative acts during his tenure in office?” That is the question of the ultimate Court will answer erstwhile it hears oral argument in Trump v. U.S. April 25, 2024.

Legacy media and the ladies of “The View” nearly lost their collective minds erstwhile the Court agreed to hear Trump’s appeal of the D.C. Circuit’s decision denying his immunity for his actions environment the events of Jan. 6, 2021. However, even Jack Smith, the peculiar Council prosecuting the case, argued that it was of “impertive public import” that the Court resolve the immunity question before trial.

But forget about Trump for the moment. The issue is bigger than Trump and his legal woes. As the partisan disagree between the left and the right growths larger, there is simply a real hazard that the criminalization of policy differences could emergence our current state of “lawfare” to a fresh level.

Several retrieved four-star generals and admirals, as well as erstwhile cabinet officials, have filed an amicus Briefwith the ultimate Court arguing that grants immunity to erstwhile presidents for actions within the outer period of their authoritative duties would rise questions about the ability of the United States to peacefully transfer power from 1 administration to another, and thereby pose a grave hazard to national security.

The retired officials’ briefing besides argues that grants immunity would undermine civilian control of the military and undermine trust and assurance in the military as an institution.

The “parade of horribles” in the retired officials’ briefings that a future president would instruct a subordinate military officials to carry out illegal orders for which they, but not the president, would be critically liberal. The briefing besides suggests that an unrestrained incumbent would usage the military to reconstruct power and, thus, destabilize America’s diplomatic and military standing among nations.

Of course, none of the hypotheticals felt by the briefing writers occured in the case counting before the Court. Apparently, they are afraid not of Donald Trump but of any unified future president.

To analyse the pros and cons of immunity, however, there is no request to specify about what any future president might do. We request only look at actual events from our fresh history.

Situation #1

President Obama ordered a drone strike in Yemen to kill Anwar al-Awlaki, an American citizen and muslim Imam critical of American abroad policy in the mediate East. Before relaxing the drones that killed al-Awlaki and 2 others, the White home thought and received a Memorandum from the Department of Justice providing legaljustification for the attack.

Several questions come to mind. Should the memo from DoJ authorizing the killing of an American citizen abroad without judicional due process immunize president Obama for violating the national criminal statutes that imposes criminal offenses for the extra territorial killing of an American citizen?

Could a subscription President, a associate of the opposition political party, direct a fresh lawyer General to invest who the killing of the U.S. citizen by drone attack in Yemen violated national criminal law? If an indication is returned against the now erstwhile president for that killing, should president Obama be allowed to claim immunity or be forced to stand trial?

Situation #2

President Biden revoked many of president Trump’s Executive Orders addressing border safety erstwhile he took office. He besides Halted construction of physical barriers intended to defend the confederate border and stem the flow of illegal border crossings and the smuggling of dangerous drugs.

The number of illegal border crossings skyrocketed. alternatively of remaining in Mexico until asylum claims were updated, migrants were “paroled” into the interior of the United States and given a court date for their asylum claim years into the future.

The quantity of illegal drugs, and the deaths of American citizens from available drug overdoses smuggled across the confederate border, escalated astronomically. national law imposes criminal punishments on these who enter the United States illegally. It besides punishes conspiracies to Violate national law.

So, if the White home switches parties erstwhile president Biden leaves, should the fresh president’s lawyer General search an indication against Biden for consulting with the Secretary of Homeland safety to Violate U.S. immigration laws by making the illegal entry of migrants into the United States? Or should that policy choices be protected by a cloud of immunity?

Situation #3

Eager to deliver on a run promise, president Biden announced a policy to “forgive” billions of dollars in student debt debt. The ultimate Court struck down the President’s plan and hell that legislature had not authenticated the Executive to universally forgive student debt debt.

Instead of seeing legislative authority, president Biden reworked his plan to trust upon a different statutes for authority. presume the courts dismissed lawsuits challenging Biden’s “Plan B” due to the fact that the plainiffs painted standing to sue. “Plan B” went forward and billions of dollars in national student loans became “grants” alternatively of loans that had to be repaid.

The national Anti-deficiency Act imposes criminal punishments on anyone who authorises the expension of national funds without a valid congressional adoption. erstwhile president Biden leaves office, can he be suggested and tried due to the fact that his “Plan B” debt strategy violated national law?

Presidential Immunity Analysis

Each of the foregoing positions names how a erstwhile president could be subject to indication for actions taken within the outer period of his authoritative duties as President. Never happen, you say? Surely, no 1 would effort to force these facts intoviolations of existing law. But Alvin Bragg, Fani Willis, and Jack Smith have all engaged in creative lawyering to bring fresh criminal charges against Trump. Apparently, any see creative lawyering as a feature and not a bug in our legal system.

While the erstwhile Presidents have substantive defenses to the ranks and the fresh themes advanced in the indications may be reducted by the courses or nullified by a jury, should the erstwhile presidents and the country be put through the specification of a criminal trial?

One of the major attributes of immunity is that it avoids the trial in the first place. Instead of placing one’s destiny in the hands of a jury and hoping they will accept 1 or more defenses or justifications for the alleged violations, immunity prevents the trial at the outset. In another words, if the process is the punishment, immunity avoids the process.

Presidential immunity for actions within the outer period of authoritative duties allows a president to make different policy and operational decisions without agreement for his individual liberty erstwhile he leaves office. It besides eliminates the pace to exact a tit for tat erstwhile the next election goes to the opposition party.

On the flip side, The existence of presidential immunity may supply unwarranted protection for the actions and decisions of a president who does not truly have the best interests of the country at heart. But the Constitution provides 2 signature checks on that unseemly circumstance: impeachment and the ballot box. Furthermore, the Constitution specifically provides that upon convention by the legislature in an impeachment trial the individual impeached “shall neverbeliable and subject to indication, trial, judgement and punishment, according to law.”

It is tempting to favour or disfavor presidential immunity in criminal cases depending upon the political or individual like or display 1 may have for the suggested erstwhile President. Republicans get immunity but Democrats don't; or vice versa. But if we are to be a nation of laws all erstwhile president should be included to presidential immunity for alleged criminal acts committed within the outer period of authoritative duties, or no erstwhile president should be so unique.

The issue before the ultimate Court is 1 of first impression. While immunity has been litigated in the context of civilian claims, no erstwhile president has been suggested for criminal acts while in office, until now. In an perfect world, the answer to the question presented in Trump v. United States would stay nothing more than an interesting subject of discretion among law professors.

But if the last 7 or 8 years have proven anything it is that we are not surviving in an perfect world.

William A. Woodruff is simply a retired Army lawyer who, as Chief of the Army Litigation Division, was responsive for defending Army policies, programs, and operations in national courts around the country. He retired from active work in 1992 and thought law for 25 years at Campbell University School of Law in North Carolina.