Thoughts on Presidential Immunity

I have never been comfortable with the Justice Department’s determination that a sitting president cannot be prosecuted. Although Americans are fond of saying that no one is above the law, this policy has indeed placed the president above the law. The Constitution does not require such a policy. The founders, wary of a king or king-like executive, would likely have considered the policy dangerous and ill-advised. Sadly, our fascist-friendly Supreme Court has adopted this unconstitutional policy and extended it. A president engaging in a murderous rampage against his alleged rivals is now free to carry out his program with impunity.

The argument that a president should not be subjected to the normal operation of the American judicial system is apparently predicated on the notion that the president’s having to deal with charges brought by the Department of Justice would distract the chief executive from discharging the duties of office.

This argument loses some of its cogency when one recognizes that the Constitution already provides for the Congress to impeach and try the president on vague charges of “high crimes and misdemeanors.” Surely, impeachment is a significant presidential distraction. The Constitution’s impeachment provisions have two deficiencies, however. 

First, the only punishments available for the commitment of high crimes and misdemeanors are removal from office and prohibition of holding any future office. Embarrassing as this may be, it is insufficiently punitive for, say, encouraging the overthrow of the American government. For such particularly “high” crimes, the ordinary criminal justice system offers more appropriate penalties.

Second, the bar to impeachment and conviction by the Congress is absurdly high. The founders apparently did not foresee that the houses of Congress might be controlled by partisans of the president and be largely impervious to calls to cashier the nation’s leader, whatever the provocation.

 In response to the argument that indictment and prosecution would cripple the office of the president, I offer another consideration. If, in fact, the president has committed intolerable acts, distracting the president through legal entanglements may distract the miscreant from continuing his (or, improbably, her) crime spree.