An Imperial Presidency

When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office.

-SCOTUS

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How to differentiate between official and unofficial duties of the POTUS? What are the “core constitutional powers” of the POTUS? What is the difference between presumptive and absolute presidential immunity, and which official duties of the POTUS would qualify for either?

Concerns about an “imperial presidency” and the protection of a corrupt President have been prominent in American political discourse, particularly since the 1970s following the Watergate scandal. The Supreme Court’s decision on presidential immunity could potentially contribute to these fears in several ways:

Promoting an Imperial Presidency

1. Expansion of Executive Privilege:
   • By recognizing broad presumptive immunity for official acts, the decision might embolden Presidents to expand their use of executive privilege, shielding more actions from judicial or congressional scrutiny. This could lead to a concentration of power in the executive branch, reducing checks and balances.
2. Lack of Immediate Accountability:
   • If the President is shielded from prosecution for many official acts until after their term ends, it creates a sense of impunity while in office. This could encourage Presidents to push the boundaries of their authority without fear of immediate legal repercussions, fostering an environment where executive overreach is more likely.
3. Blurred Lines Between Official and Unofficial Acts:
   • The decision might make it easier for Presidents to classify controversial or questionable actions as “official duties,” thereby extending immunity to actions that would otherwise be subject to legal challenge. This ambiguity can be exploited to avoid accountability.

Protecting Corrupt Presidents

1. Shielding Criminal Behavior:
   • By providing presumptive immunity for official acts, the decision could protect Presidents who engage in corrupt activities under the guise of performing their duties. For example, if a President uses their powers to obstruct justice or engage in self-dealing, they could argue these are official acts covered by immunity.
2. Delaying Justice:
   • The inability to prosecute a sitting President for certain official acts means that any criminal behavior would only be addressed after the President leaves office. This delay can complicate investigations, lead to the loss of evidence, and reduce the deterrent effect of legal consequences.
3. Potential for Abuse of Power:
   • Knowing they are largely protected from prosecution for official acts, Presidents may feel empowered to abuse their powers for personal or political gain. This could include leveraging executive orders, pardons, or foreign policy decisions in ways that undermine democratic principles and promote corruption.

Historical Context and Fears

The fears of an imperial presidency and protecting a corrupt President were especially pronounced during the 1970s due to:

• Watergate Scandal: The scandal revealed significant abuses of presidential power, including illegal surveillance, obstruction of justice, and misuse of government agencies.
• Nixon’s Resignation: President Richard Nixon’s resignation under threat of impeachment highlighted the potential for presidential misconduct and the challenges in holding a sitting President accountable.
• Church Committee Investigations: These investigations into intelligence abuses underscored the risks of unchecked executive power, revealing extensive violations of civil liberties and illegal activities by government agencies.

Conclusion

While the SCOTUS decision aims to balance the need for executive efficacy with legal accountability, it can inadvertently promote an imperial presidency and protect corrupt Presidents by expanding executive immunity, delaying justice, and blurring the lines between official and unofficial acts. These outcomes underscore the importance of robust oversight mechanisms and clear legal standards to prevent the abuse of presidential power.

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The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

Let the President violate the law, let him exploit the trappings of his office for personal gain, let him use his official power for evil ends. Because if he knew that he may one day face liability for breaking the law, he might not be as bold and fearless as we would like him to be. That is the majority’s message today.

Even if these nightmare scenarios never play out, and I pray they never do, the damage has been done. The relationship between the President and the people he serves has shifted irrevocably. In every use of official power, the President is now a king above the law.

-Justice Sotomayor

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