There’s nothing in the U.S. Constitution about presidential immunity
Published on May 13, 2024 at 11:41am CDT
Stoneage Ramblings
By John R. Stone
If you look through the U.S. Constitution you won’t find anything about presidential immunity for acts a person would take as president.
Congress does have the power to impeach and remove the president after a trial if it felt it was necessary.
Presidential immunity hit the Supreme Court in 1867 in a case entitled Mississippi vs Johnson, Johnson being then President Andrew Johnson. The court ruled then that it had “no jurisdiction…to enjoin the president in the performance of his official duties.”
As time passed in other decisions the court decided that the above decision did not mean that the President could totally avoid judicial process.
In the United States vs Nixon in the early 1970s the court ruled that President Richard Nixon needed to respond to a subpoena in a Federal criminal case. Nixon’s lawyers had argued that the Executive branch of government was independent and did not need to do so.
The court said, “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.”
Later the court said, “merely private suits for damages based on a President’s official acts” may not require the courts to intervene.
If you listened to any of the Supreme Court’s hearing on April 25 regarding whether President Donald J. Trump has complete immunity from anything he did in office you heard most justices question lawyers about absolute immunity versus immunity for official acts.
In it’s listing of duties of the president in Article II of the Constitution nothing is mentioned about elections or any presidential responsibility for elections. In fact the Constitution leaves elections up to the states. There is a reason for this.
Our country’s founders, whose governmental models up to that point had been kings, queens and their excesses, did not want a government in Washington to be able to determine who the various states sent as representatives of the people of those states. That was the job of the citizens of those states.
The states elected the representatives, senators and in presidential election years, electors to the Electoral College. It was Congress that would then meet and tally the Electoral College votes, something that is now mostly ceremonial.
If some of this seems cumbersome one must remember that when the Constitution was written we didn’t have the Internet, rapid mail service, trains, airplanes, radio, television, telephones or other quick means of moving information or people between the states and Washington D.C.
So the key word in the legal case against then President Donald J. Trump regarding activities on Jan 6, 2021 is “official.” If his actions were considered an “official” part of his job there would indeed be immunity. If not, there may not be.
The trouble, of course, is that there is no modern list of presidential duties. Some things specifically listed in the Constitution as Congressional, such as responding to military issues, have been at least partially passed to the president.
So what may need to happen before things proceed in this case is that some body, the Supreme Court or a lower court ordered by the Supreme Court, would need to create a list of official presidential duties based on the Constitution and past practices. Or, using information about past practices, determine whether the former president’s actions were outside what could be considered “official.”
It looks like that might take a while since it would involve setting a whole lot of precedents for future people holding the office of President of the United States.
