The Supreme Court’s Monday ruling on presidential immunity from criminal prosecution did not offer boundless endorsement of the executive officeholder’s prerogative to do whatever he wants without fear of consequence.
But it came far too close, holding that the Constitution “entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority.” He is further “entitled to at least presumptive immunity from prosecution for all his official acts,” the court’s majority continued, though there’s “no immunity for unofficial acts.”
Exactly where our justice system will draw the line between official and unofficial remains to be seen. It’s still possible that the acts alleged here—former president Donald Trump’s attempted interference with the 2020 election—may be deemed unofficial, permitting his prosecution to move forward. This may be less a victory for Trump than he has claimed.
But set aside Trump and the official-unofficial distinction to think about this ruling’s larger implications. The president’s constitutional duties, as Chief Justice John Roberts’s decision observed, “are of ‘unrivaled gravity and breadth.’” Bracketing off unofficial acts is a good start, but it is only that.
And while stable governance may require us to protect a sitting president from prosecution so that, as the court said, he can do “his constitutional duties without undue caution,” extending that protection for the rest of his life is not only excessive but wildly risky. It says we must ultimately depend on nothing but presidential character for good governance in many important matters. It says we should cross our fingers and hope the most powerful man on earth decides to behave himself.
I am not a constitutional scholar, and I can’t confidently assess the alarming claims in Justice Sonia Sotomayor’s dissent. But I don’t think such expertise is necessary to see the basic problem here. You simply need to know what people are like. You simply need to know about the Fall. You simply need to know, as the King James Version of my childhood put it, that there “is none righteous, no, not one” (Rom. 3:10), that our hearts are prone to be “deceitful above all things, and desperately wicked” (Jer. 17:9).
This is true of each of us, of course. But the very power of the office of the presidency offers the unique opportunity to exemplify the evils that the apostle Paul mentioned in the rest of Romans 3. To quote Roberts’s opinion, the president is constitutionally tasked with
commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States. He also has important foreign relations responsibilities: making treaties, appointing ambassadors, recognizing foreign governments, meeting foreign leaders, overseeing international diplomacy and intelligence gathering, and managing matters related to terrorism, trade, and immigration. Domestically, he must “take Care that the Laws be faithfully executed,” and he bears responsibility for the actions of the many departments and agencies within the Executive Branch. He also plays a role in lawmaking by recommending to Congress the measures he thinks wise and signing or vetoing the bills Congress passes.
What a remarkable lot of occasions that list provides for one’s tongue to practice deceit, for one’s feet to be swift to shed blood, for ruin and misery to mark one’s ways, for the way of peace and the fear of God to be unknown in one’s thoughts and deeds (Rom. 3:13–18).
What a lot of occasions, that is, for a president to commit sins—and crimes.
I’m not wholly convinced that prudence requires us to say presidents can’t be prosecuted while in office. As a matter of politics and scriptural record alike (Is. 10:1–2; Is. 49:26; Ezek. 45:8–9; James 3:1), my instinct is to heighten scrutiny and vigilance wherever power accumulates, the White House very much included. Other countries with similar systems of government already allow greater judicial accountability for their leaders, including (at least in theory) for sitting officials. We could too.
Still, even the lesser threat of post-office prosecution could serve as some check on presidential wrongdoing, and the president’s constitutional purview should not be excluded from that accountability. Many of the president’s constitutional duties are literal matters of life and death, war and peace, assassination and torture and extrajudicial imprisonment. These are precisely the matters that require accountability most.
There is a reason we think of war crimes as a distinct—and distinctly serious—category of official evil. I care far less about presidential tax fraud than I do about a presidential drone strike on a 16-year-old American boy who was never accused, let alone charged, with any crime.
The “only fix” here, MSNBC pundit Rachel Maddow said in reaction to the court’s decision, is “to put someone in the White House, from here on out, who will not abuse the absolutely tyrannical power they have just been legally granted in perpetuity.”
Happily, Maddow is wrong. There is another fix. Though we should certainly elect presidents with integrity, the framers of the Constitution did not design our government with such anthropological naiveté. They left us other options. Namely, Congress could act to meaningfully constrain presidential power.
It might take a constitutional amendment to directly respond to this decision, but not necessarily, if history is any guide. And if every partisan forever carping about the other side’s abuses of power could develop a single ounce of foresight, a congressional fix might stand a real political chance.
That’s undoubtedly wishful thinking, but it’s a wish I continue to hold dear. To borrow from Lord Acton in a lesser-known portion of his famous letter on the corrupting influence of power, we are foolish to judge presidents “unlike other men, with a favourable presumption that they did no wrong. If there is any presumption it is the other way against holders of power, increasing as the power increases.”
A government built on the assumption of its leader’s good character is a government badly built.
Bonnie Kristian is editorial director of ideas and books at Christianity Today.
