Can a President Be a Crook?
Donald Trump's lawyers argue that the former president cannot be held liable for a criminal action because the office affords absolute immunity. Like so many other Trumpian claims, it seems absurd.
Trump’s argument for immunity — that the House would have to impeach over some ground and the Senate convict before a prosecution could be legal — sounds like it’s landing a belly flop with the appellate court. He will, undoubtedly, either appeal for a full banc hearing or head to the Supreme Court. But even as a non-lawyer (there are still a few of us around), the weaknesses seem clear.
Here’s a scenario that highlights the existential problem. A president has lost a bid for reelection. The person decides to go out with a bang and sells military secrets, or shoots and kills someone in the middle of Time Square in Manhattan, two days before the newly elected president takes office. There is no time for Congress to run hearings, impeach, and convict. Is it sensible to say that the now former president has immunity?
No. Neither was a function of duties under the office, and both were gross violations of existing federal and/or local law. In Nixon vs. Fitzgerald, the Supreme Court found that a sitting president has absolute immunity against civil suits over official acts. The court however stressed that the immunity didn’t extend to criminal acts. In United States v. Nixon, the court held that a presidential claim of executive privilege could not shield the President from producing evidence in a criminal case:
“Although the courts will afford the utmost deference to Presidential acts in the performance of an Art. II function, United States v. Burr, 25 F. Cas. 187, 190, 191-192 (No. 14,694), when a claim of Presidential privilege as to materials subpoenaed for use in a criminal trial is based, as it is here, not on the ground that military or diplomatic secrets are implicated, but merely on the ground of a generalized interest in confidentiality, the President's generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial and the fundamental demands of due process of law in the fair administration of criminal justice.”
While I could imagine Thomas and maybe Alito succumbing to Trump’s wish to be a king, I don’t think a majority of the court would go that far. I certainly hope I’m right, as the potential disaster of a president who could not be held criminally liable is beyond disturbing.