Op-ed by Summer Lane | Photo: Alamy
A rather excoriating question from Supreme Court Justice Brett Kavanaugh on Thursday during presidential immunity arguments struck at the heart of the issue when he asked DOJ Counselor Michael Dreeben whether former President Barack Obama’s drone strikes against civilians were immune from criminal prosecution.
Dreeben responded, “The office of legal counsel looked at this very carefully and determined that, number one, the federal murder statute does apply to the executive branch – the president wasn’t personally carrying out the strike. But the aiding and abetting laws are broad, and it determined that a public authority exception that’s built into statutes…did not apply to the drone strike.”
While in office, President Obama exacted an intense and broad drone strike operation in the Middle East, racking up over 560 attacks during his administration, while former President George W. Bush greenlit 57 attacks.
Civilians were routinely killed during these strikes. The Council of Foreign Relations has stated that the Obama administration was, in fact, responsible for the civilian deaths of at least 324 people in that drone strike initiative overseas. According to CFR, Obama reportedly told aides in the White House at one point, “Turns out I’m really good at killing people. Didn’t know that was gonna be a strong suit of mine.”
Since he was the Commander in Chief at the time of the drone strikes, criminal prosecution did not follow President Obama for those acts when he left office in 2017 and returned to private, civilian life.
President Bill Clinton
In 1998, former President Bill Clinton was formally impeached by the House of Representatives months after news broke that he had engaged in an extramarital affair with Monica Lewinsky.
He was accused of perjury, obstructing justice, and a litany of other tawdry acts. Ultimately, he was convicted on one article of impeachment (obstruction) in 1999 and became the second president in U.S. history to be impeached. He was later acquitted in the U.S. Senate. At the time, some who supported the impeachment of President Clinton noted that his actions constituted “high crimes and misdemeanors,” according to UVA.
Regardless, no criminal prosecution or robust legal attacks followed the former president into his private civilian life after his departure from the White House.
President Richard Nixon and absolute immunity
Even further back into U.S. history, former President Richard Nixon faced accusations of bribery and obstruction in the wake of the infamous Watergate scandal. In 1974, he was pardoned by President Gerald Ford, so it is unclear if he would have faced a battle against any type of courtroom charges related to Watergate. However, he later won big in the U.S. Supreme Court case in 1982 (Nixon v. Fitzgerald), when the court ruled that a former president was absolutely immune from civil liability from actions carried out in the capacity of the nation’s executive officer.
Since 1982, it’s safe to say that presidential immunity has been broadly assumed to extend to criminal liability as well, although there is no specific ruling on the matter. Now, as President Donald Trump has taken that issue up with the highest court in the land, Americans will soon have a final answer to that question.
President Donald Trump
The historical precedent set with all other presidents of yesteryear is an imperative piece of Trump’s defense. President Donald Trump is the only president to suffer criminal prosecution after leaving office, whilst federal cases argue that he committed wrongdoings while acting as the President of the United States.
On Thursday, the Supreme Court heard arguments for and against absolute immunity for presidents when it comes to actions taken while serving as the country’s Commander in Chief.
Trump attorney John Sauer noted that prosecuting a former president for “official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure.”
U.S. Supreme Court Justices intensely discussed whether there was a unique distinction between “private” and “official” acts in the Oval Office, and whether such a distinction would be relevant to the current prosecution of Trump – or any president that comes after.
Sauer maintained that this would have to be determined on a case-by-case basis. Still, it seems impossible to distinguish private from official in the complex decisions of a president’s all-encompassing day-to-day duties.
Justice Neil Gorsuch even asked Sauer at one point if a president might feel compelled to pardon himself based upon the fear of future criminal prosecution after leaving office, “Perhaps if he feels he has to, he’ll pardon himself every four years from now on,” Sauer said, via NBC.
It seems obvious that in the absence of absolute immunity from criminal liability, a president could certainly be inclined to self-pardon upon leaving office to conjure up the same kind of legal protection for himself that justice would no longer provide.
Justice Gorsuch also pointed out that it was important to sidestep perceived or conflated feelings on the issue of presidential motives.
He said, “It didn’t matter what the president’s motives were, we’re not going to look behind it…That’s something courts shouldn’t get engaged in because presidents have all manner of motives… I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
He added, “The dangerousness of accusing your political opponent of having bad motives – and if that’s enough to overcome your core powers or any other limits…”
President Trump somberly argued this week amidst the hearing at the Supreme Court that without presidential immunity, the Oval Office would lose its teeth and be diminished to little more than a “Ceremonial” post.
He wrote, “Without Presidential Immunity, the Presidency will lose its power and prestige, and under some Leaders, have no power at all. The Presidency will be consumed by the other Branches of Government. THAT IS NOT WHAT OUR FOUNDERS WANTED!”
President Trump is correct on this issue. It seems obvious that criminal liability should go hand-in-hand with civil liability, especially if Americans want their presidents to be able to make tough decisions in the heat of, perhaps, intense warfare or a national emergency.
If a president commits wrongdoing within the executive office, then the Founding Fathers’ “whole series of structural checks,” as John Sauer described them, are properly positioned to deal with such actions on the federal level, while the president is in office.
It seems likely that allowing a political opponent or an incoming regime to bring criminal suits against a former president would establish a destructive precedent in which lawfare would eternally be used by the powers-that-be to punish their political enemies, plunging the country into “EVERLASTING DANGER,” as Trump put it.