Truth v. Myth: the U.S. president can break the law

Myth: the president has immunity from criminal or civil lawsuits for actions he carried out while he is in office

Truth: the president has immunity from criminal or civil lawsuits for actions he took to ensure the enforcement of recognized laws

Let’s nutshell this: former U.S. president Donald Trump is the focus of many different lawsuits. Some accuse him of financial fraud, some of sexual assault, falsifying records to cover up bribery, removing official documents from the White House to his private home in Florida and concealing that fact, election subversion and racketeering, and for provoking a mob of criminals to attack the U.S. Capitol building, where the U.S. Congress meets, on January 6, 2021, with the purpose of using violence against members of Congress to stop the certification of the 2020 presidential election that removed Trump from office–in other words, treason and insurrection.

All of the suits are grave. The suits about trying to overturn legal election results, by provoking an insurrection and by demanding that the Secretary of State for the state of Georgia demanding that he lie about the results and say Trump won, are the most serious. (“All I want to do is this: I just want to find 11,780 votes, which is one more than we have… Fellas, I need 11,000 votes, give me a break.”)

Trump and his lawyers have claimed that as president, he has “absolute immunity” from any and all criminal prosecution, both in and out of office: “Trump’s lawyers contended earlier this month that he simply can’t be prosecuted for efforts to overturn that election because they related to his official responsibility as president to safeguard federal elections.”

Unfortunately at this critical moment, Americans have sidetracked into discussions about whether U.S. legal precedent supports or conflicts with the claim that a U.S. president is immune from criminal prosecution instead of focusing on the actual threat: Trump doesn’t want his illegal actions to be protected based on his role as president. He wants them protected based on the new idea that the president is allowed to commit crimes. A president (and by extension, anyone who works for him, or in the federal government, or state government, or local government) can do whatever they want because committing crimes is no longer illegal for them.

This isn’t immediately apparent, perhaps, but if we look at the legal precedent people are distracting themselves with we see it emerge very clearly.

Legitimate sources that try to answer the question “does the president have immunity from criminal and civil lawsuits?” usually begin with the 1867 case Mississippi v. Johnson. This case involved the state of Mississippi suing President Johnson in an attempt to forbid him from enforcing the Reconstruction Acts that were meant to protect the newly granted civil rights of black Americans who had been enslaved. The Supreme Court refused to allow this, not because its members supported civil rights–the complete opposite is true–but because it upheld the immunity of a president from “judicial process” related to carrying out the law of the land: “Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill…”

Notice that important language: the president cannot be prevented from ensuring that “laws are faithfully executed.” If you have a problem with the law of the land, you have to challenge the constitutionality of that law in court. You can’t challenge the power of the president to enforce the law. Those are two very different things: laws can be challenge; the role of the president cannot. Americans who challenged slavery before the Civil War didn’t sue the men who were president to get them to stop upholding laws that permitted slavery. They challenged those laws in the courts.

Most sources also mention United States v Burr, an 1807 case where the Court ruled that President Jefferson could be required to testify in the treason trial of Aaron Burr, who was his vice-president from 1801-1805. As Constitution Annotated puts it, “Chief Justice Marshall recognized that while the President could be subject to a criminal subpoena, the President could still withhold information from disclosure based on executive privilege. In the two centuries since the Burr trial, the Executive Branch’s practices and Supreme Court rulings unequivocally and emphatically endorsed Chief Justice Marshall’s position that the President was subject to federal criminal process.”

Next, United States v. Nixon, the 1974 case where the Court similarly ruled that President Nixon could be required to testify if subpoenaed in the criminal case against him and members of his staff. “The President’s counsel had argued the President was immune to judicial process, claiming “that the independence of the Executive Branch within its own sphere… insulates a President from a judicial subpoena in an ongoing criminal prosecution, and thereby protects confidential Presidential communications.” However, the Court held, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” The primary constitutional duty of the courts to do justice in criminal prosecutions was a critical counterbalance to the claim of presidential immunity, and to accept the President’s argument would disturb the separation-of-powers function of achieving “a workable government” as well as “gravely impair the role of the courts under Art. III.”

Finally, the Court upheld that ruling in the 1997 case Clinton v. Jones when it denied President Clinton’s motion to dismiss the sexual harassment charges filed against him by Paula Jones on the grounds of presidential immunity. As FindLaw puts it: “The Court held that its precedents affording the President immunity from suit for his official conduct – primarily on the basis that he should be enabled to perform his duties effectively without fear that a particular decision might give rise to personal liability—were inapplicable in this kind of case. Moreover, the separation-of-powers doctrine did not require a stay of all private actions against the President. Separation of powers is preserved by guarding against the encroachment or aggrandizement of one of the coequal branches of the government at the expense of another. However, a federal trial court tending to a civil suit in which the President is a party performs only its judicial function, not a function of another branch. No decision by a trial court could curtail the scope of the President’s powers.”

Again, the key here is that a president must be allowed to “perform their duties”–that is, ensuring that laws are enforced. That’s what the president has the power to do. No president can be punished for performing their duty of ensuring that existing laws are carried out. But any and every president can and must be punished for breaking the law.

These Supreme Court rulings and the precedent they set are being examined and argued by legal experts and pundits and just about everyone else. The question is always, will these rulings be upheld by the current Supreme Court, packed as it is with members who have already made it clear that they have an agenda to overturn every ruling that supports civil rights in this country?

But that isn’t the right question, because again, that’s not the claim Trump and team are making. They are not claiming that Trump did nothing illegal. They are claiming that it’s okay that he did. They are claiming that the president can commit crimes–acts that are clearly illegal for everyone else–without consequence. Most recently, Trump lawyer John Sauer told the D.C. Circuit Court of Appeals that “a president directing SEAL Team Six to kill a political opponent would be an action barred from prosecution given a former executive’s broad immunity to criminal prosecution”. 

Former president Donald Trump’s lawyer argued that presidential immunity would cover the U.S. president ordering political rivals to be assassinated by SEAL Team Six.

During a hearing at a federal appeals court on Tuesday, Trump’s lead lawyer John Sauer made a sweeping argument for executive immunity, essentially saying that only a president who has been impeached and removed from office by Congress could be criminally prosecuted. Therefore, Sauer argued, the former president should be shielded from criminal prosecution.

One of the judges asked Sauer: “Could a president who ordered SEAL Team 6 to assassinate a political rival, and is not impeached, would he be subject to criminal prosecution?”

Sauer responded: “If he were impeached and convicted first… there is a political process that would have to occur.”

The argument here is: if the president breaks the law, he can’t be prosecuted for it because the president is allowed to commit crimes.

Crucially, the argument is not if the president is ensuring that laws are enforced, he can’t be prevented from doing so.

That’s what’s at stake here. That’s what is really being argued, somehow, in this country. It’s no surprise. Almost exactly 8 years ago, when he was a presidential candidate, Trump said “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” And somehow this did not immediately disqualify him in the eyes of his supporters and people who were undecided. Somehow this didn’t end his campaign. He became president, broke the law repeatedly, tried to overthrow the government when he lost the election… and still we actually sit and debate whether he should be tried for breaking the law. For treason. For insurrection. For election subversion.

In these dark times, there is little hope that Trump will not prevail. And it’s not just about him–so many, many people seem so very eager to follow in his footsteps and go even farther into dictatorship. But that doesn’t mean we shouldn’t do all we can, wherever we are, to fight for the rule of law, the legal process, and the president being subject to the law. It’s a fight that is only going to require more and more of our energy going forward. American democracy has always been deeply flawed and incomplete, but its trajectory has always been toward the expansion of civil rights despite the dogged, unrelenting, hate-filled attempts of the undemocratic to stop it. The forces for that reversal are enjoying a heyday right now, but the fight is not over. Myth can’t be allowed to become truth–not on our collective watch.