Immunity for Trump—or for everyone?
By Phil Lawler ( bio - articles - email ) | Jul 15, 2024
So now it seems that the 2024 presidential election will be decided by the American voters rather than the prosecutors. This site is not devoted to political controversy, but insofar as Catholic social teaching favors the right of the people to vote, the faithful should welcome that result, regardless of partisan preferences.
I make this observation on the day that a federal court dismissed a special prosecutor’s case against Donald Trump, accepting what the highly partisan Washington Post had airily dismissed as a “long-shot argument” by Trump’s lawyers. Earlier this month the Supreme Court tossed out another case against Trump, accepting the former president’s argument that he should be held immune from criminal prosecution.
My purpose in writing is not to endorse or dispute these court decisions. Rather, my point is to argue that—contrary to much of the editorial commentary in the mainstream media—these decisions are fully in keeping with the relevant legal precedents.
In the Trump v. United States ruling, Chief Justice Roberts wrote:
Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.
Trump could in theory be prosecuted for “unofficial acts,” the court allowed. But the distinction between “official” and “unofficial” acts by a president should be carefully weighed by lower courts. A prosecutor could not unilaterally declare that the president was acting on his own behalf. Presidential acts would be presumed to be official unless proven otherwise.
If you think that approach gives wide latitude to a president, you’re right. If you want to argue that it’s too much latitude, I won’t debate the point. I simply want to point out that the courts in recent years have routinely upheld a very strong presumption that government officials should be protected from prosecution or civil suits. I take a particular interest in the legal arguments on this matter, because I was a plaintiff in one of the precedent-setting cases.
For the benefit of readers who have not already heard my story, it begins in November 1993, when the late Senator Ted Kennedy, at a Boston press conference following a fundraising event for his re-election campaign, declared:
People can have a difference on public policy issues, but when we have a national organization like Operation Rescue that has as a matter of national policy firebombing and even murder, that’s unacceptable.
At the time I was a spokesman for Operation Rescue in Boston. (For more on Operation Rescue—the largest and most neglected civil-disobedience movement in American history, look here.) The senior senator in my home state had, in effect, accused me of murder. After demanding a retraction of that reckless and irresponsible claim, and receiving no reply, I joined with other pro-life activists in bringing a lawsuit against Kennedy for libel.
Or rather we thought we were suing Kennedy. But the case was quickly shifted from state to federal court, with the US government replacing Kennedy as the defendant, because the Justice Department argued that the senator was acting in his official capacity when he made that statement, and should thus be immune from libel suits.
The US Constitution explicitly provides (Article I, Section 6) regarding members of Congress, that “for any speech and debate in either house, they shall not be questioned in any other place.” The courts have extended that blanket protection to include statements made by Members of Congress outside the chambers of the Capitol, provided that they are acting in their official capacities. But Senator Kennedy made that libelous remark in the context of an event for his re-election campaign. Do a senator’s “official” duties include running for re-election?
In our case, a federal judge answered that question in the affirmative, saying of Kennedy’s statement: “His remarks about Operation Rescue were made, at least in part, to inform the public of the reasons for his position on a legislative matter.” That ruling was confirmed on appeal, and in 1999 the Supreme Court declined to review the case. The ruling has subsequently been cited as a legal precedent in several other cases involving the presumption of immunity accorded to elected officials of the federal government.
If an elected representative comes to town and raises money by accusing you of murder, should you have legal recourse? Needless to say, I think you should; I think Operation Rescue v. United States was wrongly decided. But angry editorialists now argue that the courts are giving unusual deference to Donald Trump. Not so. For good or for ill, the courts have been giving elected officials that deference for years.
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Posted by: ewaughok -
Jul. 16, 2024 6:22 AM ET USA
Thanks, Mr Lawler. I had heard of Operation Rescue v. United States, but had not known of your involvement. I’m wondering about what might happen if the government legislator or other elected official had urged that a certain person should be killed. When subsequently one of their henchmen commits the deed, would that government official be immune? What if he/she had actually given the order to kill, but in a metaphorical or indirect way? Would he or she be immune?