Delineating Presidential Immunity: From Crack Cocaine to Foreign Hit Squads, Hypothetical Scenarios Illuminate the Debate Commentary
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Delineating Presidential Immunity: From Crack Cocaine to Foreign Hit Squads, Hypothetical Scenarios Illuminate the Debate

“Does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office, and if so, to what extent?” This is the latest question the Supreme Court is grappling with that will have a direct impact on a leading candidate ahead of what are expected to be historically divisive presidential elections.

Certainly, many acts fall into something of a grey area.

Years ago, while analyzing the potential culpability of federal officials for torture and on the killings of Americans in Iraq, I found that questions of immunity can be better grasped when shifting the hypothetical from grey-scale actions to more black-and-white scenarios.

Rather than asking whether otherwise permissible interrogation techniques went too far, consider this: Could a sitting or former president be prosecuted for selling crack cocaine out of the Oval Office? What about for hiring a hitman to neutralize a political competitor? And how would the answers to these questions change if the president asserted the sales or the violence were for national security purposes?

In a legal landscape riddled with complexities and entrenched norms, these hypotheticals evoke far-fetched plotlines. Yet, these thought experiments serve as poignant entry points into a deeper examination of the intricate web of presidential immunity, the exercise of executive powers, and the pursuit of accountability at the highest echelons of government. As the nation grapples with questions of justice and transparency, these scenarios offer a sobering glimpse into the potential pitfalls of navigating the intersection of law, power, and politics.

Two important Washington norms underlie the ongoing debate over whether Donald Trump should be immune to prosecution for acts related to his stint in the White House.

First, there is the norm that we pursue malfeasance at the bottom but attribute only misfeasance at the top. This is akin to the notion that “old mistakes were made.” In the military, this translates to “different spanks for different ranks” or, put more prosaically: sh*t rolls downhill.

The second Washington norm is that one may criticize the policy, but should refrain from criticizing the person. This was evident in the efforts for accountability for torture back in the Bush 42 years and afterward. Attorney General Eric Holder blocked the pursuit of high-level civilians and the former President through the structuring of DOJ parameters for investigation. Moreover, when footage of torture in Thailand was destroyed by a CIA official in violation of a New York judge’s court order, the judge’s remedy was essentially to say “don’t do it again.” This reflects a culture that is too complacent and focuses too much on criticizing policies rather than individuals.

The combination of these norms makes Washington as a whole, and SCOTUS as an entity, reluctant to allow criminal prosecutions of presidents.

Thus, the Colorado case decision makes sense as an effort to emasculate Section 3 of the 14th Amendment to make sure that no accountability for January 6th occurs through state disqualification of any suspected insurrectionist wishing to run for federal office. The need for Congress to pass legislation to implement that section of the Amendment makes certain that no one at the top will be disturbed.

Turning to the Presidential immunity case, these norms may once again be implicitly at play. We should be cautious of attempts to 1) differentiate between official acts and personal acts, and 2) determine who makes that decision and under what circumstances.

The distinction between official acts and personal acts mirrors what occurs under the federal officer removal act when a state criminal indictment is brought against a federal agent in state court. Upon the defendant’s motion, the case is transferred from state court to the local federal court to ascertain whether the federal agent acted within the scope of their duties. If so, the case is dismissed before trial; if not, it may be remanded, or the case proceeds in federal court. A recent example of this is the Mark Meadows case in the Georgia prosecution for election interference.

However, jurisprudence in this realm tends to profoundly favor the defendant. For instance, one criterion is whether the crime was clearly stated to put the federal officer on notice of their risk of criminal liability. Supreme Court members questioning the vagueness of criminal laws seemed to suggest that this line of inquiry may feature prominently in the forthcoming decision. Another criterion is distinguishing between ministerial acts that may be prosecuted and discretionary acts in the role that would not be prosecutable. Presidential roles are generally perceived as almost entirely discretionary. Alternatively, courts may interpret the scope of federal officers’ duties broadly, rendering them not prosecutable. The federal government operates through its officers, so a broad interpretation of officer duties can lead to qualified immunity.

The outcome is that the state prosecution of the federal officer is dismissed. When it comes to federal prosecution, where there are no tensions between competing state and federal prosecutors, the two norms once again hinder the Department of Justice from pursuing high-level civilians such as former presidents or cabinet members.

With all of that in mind, let’s return to my starting hypothetical: could a President be criminally prosecuted for selling crack cocaine out of the Oval Office? This example helps clarify the issue.

Based on the recent oral arguments before the Supreme Court in Trump v. US, the determination of whether an act is prosecutable could come down to whether it qualifies as private conduct, or an official act, carried out for national security reasons. Under this distinction, advanced by some questioners, a president would be immune, halting federal prosecution and likely leading to dismissal by a state court prosecutor if the conduct could be described as official. If an official acts distinction is accepted, I contend that, due to the extensive powers wielded by a president, such a distinction should not shield them from criminal liability. At most, official acts might serve as a defense during a full-blown trial in federal court.

Nevertheless, if a distinction is made, it should be between official acts performed with Presidential powers — Justice Robert Jackson’s tripartite analysis of the zenith to the nadir of Presidential powers could apply — and criminal acts committed with official powers. The latter would be beyond the pale if they exceed any Constitutional or Congressional powers granted to the former President while in office.

This distinction was made in France in the 1990s when several high-ranking officials, including then-former prime minister Laurent Fabius, were prosecuted for authorizing the use of unscreened blood for transfusions, resulting in HIV infections and deaths. While official powers sanctioned the action, the act itself constituted manslaughter — an unlawful act.

Analysis of cases under the federal officer removal act indicates that the two norms hindering the pursuit of top leaders often lead federal courts to swiftly dismiss qualified immunity cases in state courts, sometimes overlooking the gravity of the alleged criminal offenses. However, this should not be the case for federal prosecutions where there are no conflicting sovereign concerns.

The risk inherent in having a President, particularly within a unitary Executive Presidency, is the potential for individuals with vast powers to employ them for criminal purposes. Reflecting on past injustices such as the torture and enhanced interrogation techniques I refer to above underscores how pernicious Executive authority can become. Nonetheless, if we acknowledge that malfeasance can permeate the highest levels of government, prosecutions should proceed accordingly. While prosecuting a sitting president may prove challenging due to the demands of the office and legal precedents, once out of office, individuals should be subject to trial if the evidence supports the alleged crime.

At least in my perspective, this embodies the essence of the principle of “refluât stercus,” or making accountability ascend. For those concerned about prosecuting mistakes, it’s important to note that errors may not necessarily be prosecutable. However, the same standards of culpable negligence or willful ignorance that apply to ordinary citizens should also be applicable to a former president.

Another layer of complexity, not addressed in the hypotheticals of the SCOTUS oral argument, arises if a President engages foreign individuals or authorities to carry out illicit activities. Consider a scenario where a president recruits a Russian hit squad to eliminate their political opponent by either pushing them out of a window or poisoning them with Polonium. Would such actions fall under foreign affairs powers? Are they considered official acts?

The potential implications of drawing a distinction between official acts at the outset versus using them as a defense later on are evident. The involvement of foreign affairs introduces a dimension that could prompt the invocation of the state secrets doctrine or foreign affairs exception, aiming to thwart federal or state criminal prosecutions. This tactic has been observed in various detainee cases during the War on Terror.

As history has shown, there is no shortage of adept lawyers willing to devise strategies to shield a President from criminal liability — without even delving into the contentious topic of self-pardon or other Washington maneuvers to evade high-level accountability.

Certainly, we must avoid offering “get out of jail free cards.” However, before we contemplate such extreme measures, we must prevent the creation of “never fear being in jail” cards for high-ranking officials, up to and including presidents. As a society, we should reject such safeguards, although it’s unsurprising that presidents, stretching back to Thomas Jefferson, have sought such protections.

Amid the legal debates surrounding presidential immunity, the Supreme Court’s deliberations on whether a former president enjoys immunity from criminal prosecution for actions deemed official during their tenure hold profound implications, particularly in the lead-up to what promises to be a contentious presidential election. In this context, the use of thought-provoking hypotheticals, such as a president selling crack cocaine from the Oval Office or enlisting a foreign hit squad for political ends, invites healthy scrutiny of the boundaries of executive power. In the pursuit of justice and transparency, we must remain vigilant against the erosion of accountability, recognizing that no individual, regardless of their stature, is above the law. As the nation grapples with these weighty issues, the imperative to uphold the principles of accountability and integrity in governance has never been more urgent.

Benjamin G. Davis is Emeritus Professor of Law at the University of Toledo College of Law.

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