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Presidents have SOME immunity sayeth the Supreme Court … not total.

Presidents have SOME immunity sayeth the Supreme Court … not total.

The hysterical left is at it again.  This time it is their hyper and largely mendacious reaction to the Supreme Court immunity decision.  Let us make one thing perfectly clear.  The Supreme Court did NOT grant total immunity to presidents.  Presidents have always had a degree of immunity.  The Court did not make presidents immune from prosecution for criminal actions unrelated to official duties.  Presidents can even be prosecuted for actions not relating to the presidency if prosecutors can overcome the initial presumption of innocence.

According to the hair-on-fire crowd on the left, presidents are like all other citizens in terms of the law.  There was no immunity from prosecution.  And now – thanks to the high court– presidents have total immunity from any crimes committed while in office.  Both sides of that narrative are false.

Presidents have long had a level of immunity from prosecution under the Constitution and the law for actions taken in conjunction with their official duties as President of the United States. They could be criminally prosecuted for crimes unrelated to official responsibilities – and that is still the case.

Presidents cannot – and never could – be sued or indicted while in office.  Otherwise, partisan prosecutors would have the President in court all the time.  The remedy for criminal conduct or abuse of power is impeachment (indictment) by the House and conviction (removal from office) by the Senate.  Once out of office, a President can be pursued for civil and criminal actions by the courts.

The history of impeachment is telling.  President Andrew Johnson was impeached for removing a cabinet member.  While presidents had the power to appoint, it was not clear that they could remove after a person had been approved by the Senate.  Johnson was not removed by the Senate – and subsequent court cases established the right of a President to fire a Cabinet member at will.

In the case of President Nixon, he resigned prior to the inevitability of his impeachment and removal from office.  His crime was covering up a burglary.  He could have – and probably would have — stood trial on that charge had President Ford not pardoned him.

President Clinton was impeached not for his affair with a young intern but for lying about it under oath – perjury.   In his case, the crime was not covered by presidential immunity against eventual prosecution, the Senate did not feel it rose to the level warranting removal from office. Subsequently, Clinton pled guilty to perjury and lost his law license.

Some argue that the Clinton impeachment was based more on politics than merit and lowered the bar for future impeachments.  That seems to have been borne out by the two impeachments of President Trump. The first was over the accusation that he improperly threatened to withhold aid to Ukraine – which was not at war at the time – for information on possible illegal activities by Hunter Biden in his association with the corrupt Burisma Holdings energy company.

It is unlikely that Trump could ever have been tried on any criminal charge because (1) his actions were not criminal in a legal sense and (2) that uncovering high level international corruption by an American citizen is arguably within the realm of a president’s official duties.  That impeachment was clearly politics over merit.

While much more dramatic, the second impeachment followed the same pattern.  Trump was accused of taking illegal actions to overthrow the election through insurrection.  That is an accusation and political narrative, but not something that was tested in court at the time.  Conversely, Trump contends that it was in his duties as President to ensure an honest count in the election.  Like it or not, Trump has a defense argument to be made.  Notably, Special Counsel Jack Smith has never charged Trump with insurrection although the media throws that term around as if it is a fact.

What the Supreme Court did do was to do what it is supposed to do.  It took the ambiguity out of the issues relating to a President’s susceptibility to prosecution for alleged crimes involving his presidential duties or outside his presidential duties.

We have to understand that the issue was never no immunity or total immunity.  All nine justices recognized the existence of a level of presidential immunity.  They disagreed on the scope and legal requirements to pursue cases against a president.

As is too often the case these days, the response to the court’s decision is hyperbolic fearmongering – to the point of hysteria — advanced as a political narrative,  No … the Supreme did not make a president a king.

So, there ‘tis.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.

9 Comments

  1. Frank stetson

    Under the Trump scotus, the people have less rights, less power, and the President more rights and more power. It cannot be denied that scotus took something from the people and gave something to the President.

    You can argue the qualities of the decisions, but you can’t argue that.

    And, of course, some like those poLIEcies

    Reply
    • Tom

      This article gets a Stop The Spin (STS) rating of 4, here is why:

      1) Larry says, “Presidents have long had a level of immunity from prosecution under the Constitution”. Immunity is never mentioned in the US Constitution. Immunity is a concept developed on the basis of the way the framers set up the government. A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. BUT…. The immunity argument goes back to 1867, Andrew Johnson. In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his “purely executive and political” powers.1 The Court stated, it had “no jurisdiction . . . to enjoin the President in the performance of his official duties.” In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. This recent SCOTUS theorized that presidential immunity must be found in the Separation of Powers document – which is a concept, not a document.

      “The framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” Smith’s team wrote. Constitutional expert Shultz writes, “”We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they’ve left office there’s no immunity and they could be charged with the crime,” Schultz said.

      2) In a sense, the SCOTUS does make the POTUS a king in a manner of speaking if you look at the way kings and monarchs acted back when the US Constitution was written. SCOTUS confirmed that the POTUS is the only one has the power to pardon. It also noted that a president’s motivations, taped conversations, and other records generated in the process of ordering a criminal activity cannot be used as evidence. Thus the POTUS can order the incarceration of opponents by the DOJ. While the DOJ is not immune, the POTUS can grant immunity to the bad actors in the DOJ. This was the essence of the 3 dissenting judges. Larry calls it hair on fire – funny way to characterize it since the three judges were worried about Trump abusing in this manner, and Trump’s hair is fire orange!

      3) Larry spins the Ukraine incident big time!! In the Ukraine deal, the funding was already approved, this was the will of Congress. Trump was attempting to withhold the already approved funding because he wanted criminal investigation activities for the purposes of use by his campaign. Presidential campaigning is not a core office activity of he POTUS position – thus he could have been prosecuted. But the GOP controlled Senate refused to impeach him.

      4) Like in #3 above, ” ensuring honest count in the election” is not a core duty of the POTUS position. Election integrity is the duty of the state, so there is an excellent argument to be made against what Trump did and what he was involved in. Nor is providing alternate elector sheets the job of the POTUS. And again, Trump was saved by GOP majority. This will still be prosecuted by Mr. Smith. Alternate “fake” elector lists prosecutions are already happening in AZ and other states.

      5) Based on Trump’s documented behavior and statements, there is reason to be concerned, see #2 above.

      Only time will tell not IF but WHEN the dissenters fears actually come true.

      Reply
    • Tom

      Not only did the SCOTUS take something from the people, they consolidated power into the Presidency and themselves. They have become the right hand of the executive branch. Women have been the biggest losers. Which is why I recommend we all join the Seneca Project. Just as women have been Trump’s downfall in the justice system, they will be his downfall in the electoral system.

      Reply
      • frank stetson

        Tom, yes, the people have less rights, the President more rights under this SCROTUM. (abbreviation for Trump’s Republican SCOTUS).

        But Trump’s attack on women begins I think in 2017 when he overturns Obama’s EO protections. A number of them.

        His blind hatred of anything Obama led to some really stupid choices.

        Reply
      • Tom

        I agree Frank. I often wondered back then what Obama did to Trump?

        Reply
        • frank stetson

          Tom, Twas the 2011 white house correspondent’s dinner, the yearly press club thingee. I saw it live, it’s cute, funny, and pretty tame.

          They keep panning on Trump and you can see him turning color, getting ready to go full Scanners and have his head blow apart. His walk of shame out is priceless. Most people, especially in his position, would just laugh it off. It was funny. But oh my, he has never been the same in regards to Obama.

          It’s on-line YouTube and elsewhere probably, but not sure if they include the walk out scene which just freaking funny.

          The man can hold a grudge and he’s not even Irish!

          Reply
  2. Archie

    Loving SCOTUS

    Reply
  3. Darren

    I would argue that importing 12 Million Foreign individuals into our country
    not only lowers this country’s standard of living but limits our individual
    rights as they have been trampled on for foreigners.
    Weather it be limiting our health care or spending our tax money with NO
    direct benefit to the citizens who Paid!
    SCOTUS is the least of it. At the moment anyway.

    Reply
  4. Tom

    This article gets a Stop The Spin (STS) rating of 4, here is why:

    1) Larry says, “Presidents have long had a level of immunity from prosecution under the Constitution”. Immunity is never mentioned in the US Constitution. Immunity is a concept developed on the basis of the way the framers set up the government. A well-known concept derived from the text and structure of the Constitution is the doctrine of what is commonly called separation of powers. BUT…. The immunity argument goes back to 1867, Andrew Johnson. In its 1867 decision Mississippi v. Johnson, the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his “purely executive and political” powers.1 The Court stated, it had “no jurisdiction . . . to enjoin the President in the performance of his official duties.” In subsequent decisions, however, the Court made clear that Johnson does not stand for the proposition that the President is immune from judicial process. This recent SCOTUS theorized that presidential immunity must be found in the Separation of Powers document – which is a concept, not a document.

    “The framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” Smith’s team wrote. Constitutional expert Shultz writes, “”We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they’ve left office there’s no immunity and they could be charged with the crime,” Schultz said.

    2) In a sense, the SCOTUS does make the POTUS a king in a manner of speaking if you look at the way kings and monarchs acted back when the US Constitution was written. SCOTUS confirmed that the POTUS is the only one has the power to pardon. It also noted that a president’s motivations, taped conversations, and other records generated in the process of ordering a criminal activity cannot be used as evidence. Thus the POTUS can order the incarceration of opponents by the DOJ. While the DOJ is not immune, the POTUS can grant immunity to the bad actors in the DOJ. This was the essence of the 3 dissenting judges. Larry calls it hair on fire – funny way to characterize it since the three judges were worried about Trump abusing in this manner, and Trump’s hair is fire orange!

    3) Larry spins the Ukraine incident big time!! In the Ukraine deal, the funding was already approved, this was the will of Congress. Trump was attempting to withhold the already approved funding because he wanted criminal investigation activities for the purposes of use by his campaign. Presidential campaigning is not a core office activity of he POTUS position – thus he could have been prosecuted. But the GOP controlled Senate refused to impeach him.

    4) Like in #3 above, ” ensuring honest count in the election” is not a core duty of the POTUS position. Election integrity is the duty of the state, so there is an excellent argument to be made against what Trump did and what he was involved in. Nor is providing alternate elector sheets the job of the POTUS. And again, Trump was saved by GOP majority. This will still be prosecuted by Mr. Smith. Alternate “fake” elector lists prosecutions are already happening in AZ and other states.

    5) Based on Trump’s documented behavior and statements, there is reason to be concerned, see #2 above.

    Only time will tell not IF but WHEN the dissenters fears actually come true.

    Reply

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