Trump’s presidential immunity claim is an obvious loser

in him simple In an immunity case the Supreme Court will hear on April 25, President Donald Trump argued that impunity for former presidents raises major problems with the separation of powers. He’s absolutely right.

Unfortunately for Trump, the problem is not with the courts that decide against the former president. Former presidents are not constitutional nobodies, and former employees of the executive branch are always subject to prosecution. The problem lies in the idea that the judiciary can prevent a future president, or rather a future president’s attorney general, from prosecuting a former president for crimes committed while in office.

Consider what a judicial grant of presidential immunity would mean. The Supreme Court would preempt the president’s explicit constitutional duty to “see that the laws are faithfully executed,” and usurp the executive branch’s inherent power to prosecute criminals.

Although that power is circumvented by safeguards overseen by the judiciary, the constitutional system of governance gives the executive branch sole authority to decide to bring (or not bring) criminal charges. The prosecutor’s discretion is wide-ranging and cannot be taken lightly by the court.

While it is true that the Supreme Court has never had to consider the question of presidential impunity, there is no need for the court to invent some new analytical framework to arrive at the correct answer. Whether a former president should be criminally prosecuted by the next administration is, in effect, the definition of a “political question” that cannot be answered by the judiciary. I won’t bore you with the detailed analysis, but baker vs carr, the Supreme Court has established six factors, any one of which is sufficient to make an issue a political issue that the court cannot decide. The former president’s impunity checks four of his six boxes.

Again, this is not theoretical. We’ve seen it happen before. After Richard Nixon resigned, President Gerald Ford, after careful consideration, used his constitutional authority to order Nixon to resign. forgiveness On his role in Watergate: “As president, my first concern must always be the best interests of all the American people I serve…My conscience is a nightmare that continues.” It clearly and reliably tells me that I cannot prolong the “to reopen closed chapters.” My conscience tells me that only I, as President, have the constitutional authority to seal this book. My conscience tells me that it is my duty not only to proclaim domestic tranquility, but to do everything possible to ensure it. ”

Ford may well have decided that it was necessary to prosecute Nixon for a crime in the “best interest of all the people.” At the time, many thought he should be. If Nixon had ordered an elite unit like SEAL Team 6 to assassinate someone, Ford might have come to a different conclusion. And that was probably his mission. Balancing the use of prosecutorial discretion and pardon power is a matter for the executive branch, not the courts.

The Supreme Court stated that “a sitting president should be presumed to be extremely interested and best placed to assess the current and future needs of the executive branch and support the exercise of prerogatives accordingly.” Ta. I have written In this case, the court was talking about executive privilege, but the same applies to presidential immunity.

Under any circumstances, it is up to the sitting president, not the Supreme Court, to decide whether granting immunity to a former president is in the country’s best interest. By accepting this case, the court has already become involved in the core functions of the executive branch. Such entanglements could make Trump’s intervention decisive if he were able to delay the trial’s conclusion until after the election.

We must hope that the court recognizes that and issues its opinion on the first day of May rather than the last day of June. The Supreme Court did not pardon Richard Nixon, and it should not pardon Donald Trump, even through the back door.

Chris Truax is a San Diego appellate attorney and member of the Democracy Guardrails Project.

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