Limited immunity is not a novel concept

The hot topic over the next few days is if and when Presidents should get immunity for official acts ordered as part of his (or her) “core constitutional powers,” even when some believe those acts are criminal. 

As a sampling of public opinion, here’s a snap poll conducted by Michael Smerconish, who hosts a show on left-of-center CNN, whose audience is mostly left of center.


Not surprisingly, a large majority — who no doubt hate Donald J. Trump — said that Presidents should not be free from prosecution for criminal acts, a vote I believe they were casting specifically against Trump.

I ask them if they would prosecute — it’s not too late — Barack Obama for a secret “kill list” and specifically the extralegal execution of an American teenager without a trial, as reported by the leftist The Atlantic?

Would they prosecute George W. Bush for “shock and awe”?

Bill Clinton for illicit sex with a subordinate?

Harry S Truman for dropping the atomic bomb?

Franklin Delano Roosevelt for incarcerating Japanese-American citizens?

I am no fan of Trump’s, but I am a fan of equal treatment under the law, and that extends to people I don’t like. Lady Justice is portrayed wearing a blindfold to represent Law should be blind to who you are, but not to what you have done.

Members of Congress, mayors, police officers, among others, enjoy qualified immunity for acts they commit while carrying out their official duties. It was established in 1982 by what was then a majority liberal U.S. Supreme Court.

What the current conservative Supreme Court did was extend that principle to Presidents, while not immunizing them from prosecution for nonofficial acts.

The Supremes returned the case to lower courts to figure out how to define “official” and “nonofficial,” and I can see that as a rat’s nest that will take decades to resolve.

Much easier to resolve, I think, was Justice Sonia Sotomayor’s hypothetical about a President ordering Seal Team Six to kill a political opponent. I can’t see that as legitimate “core Constitutional” power. It is personal and political.

If you believe the High Court has given Presidents unlimited power, can you imagine Joe Biden ordering Seal Team Six to assassinate Trump — and getting away with it?

Theoretically, I suppose it is possible for a President to go rogue within the “core,” and he would be “above the law.” But he would have to face judgment in the form of the electorate.

I view Trump’s Jan. 6 speech not as a “core” Presidential action, but him speaking as a failed political candidate, which means no immunity from prosecution for what he said.

Sotomayor also argued the majority has made the President “above the law.”

I see the President — with no immunity for nonofficial acts — no more above the law than public officials who enjoy qualified immunity.

My rule of thumb is to treat everyone equally — even Trump.

42 thoughts on “Limited immunity is not a novel concept”

  1. I actually shudder at thought of another four years of Mar A Lardo in the White House. Having said that, I have to agree with you, and the Supreme Court decision regarding immunity in office in the performance of official acts. Do people realize this will also make it harder for Trump to go after Biden for acts he perceives as illegal? As you pointed out, Justice needs to be blind.

    1. Why would you not shudder at 4 more years of Biden who would be a puppet for the unelected people pulling his strings. Talk about destroying democracy.

      1. It has been amusing to read how the brain trust at the Inquirer and NPR/WHYY, too, has been getting all hot about the immunity issue overlooking that Biden could easily be rolled over the coals, too, for his corruption, misdeeds, smelling little girl’s hair, endless cockamamie lies and very stupid, dangerous policies he has inflicted on the USA and he will be protected by a certain amount of immunity, too. Will Bunch really went over the cliff on this one. Does he ever not head for the cliff! A cast of lightweights over at the Inquirer.

        1. Will seems to always have his panties in a Bunch. That’s probably his/her problem: He/She’s hopelessly gender confused. Plucked his eyebrows on the way; shaved his legs and then he was a she.

      2. At least Biden has strings. tRUMP has nothing to hold onto – especially his empty cranium. Now THAT’s a more troubling way to destroy democracy.

      3. Biden is far more alert than Alzheimer’s-addled Irangate Reagan, who sold weapons to a terrorist country. Not that either of them should or should’ve served a second term.
        Dems should invoke the 25th Amendment if Biden refuses to withdraw. If Biden really, really loves America, then he should put America first over his own ego and dropout of the race.

    2. Assuming “Mark” is a male of the species, I actually shudder at the thought of you as a member of our military or a police officer. I envision a pedantic coward.

  2. Had SCOTUS not ruled as it did, that law would have been used for a political whip going forward, making a mockery of presidential immunity and destroying future presidents. The three liberals who disagreed with the majority were dead wrong and ruled with their political bias and not their heads.

    1. Genius, there has never been “presidential immunity” in the history of the Republic. And we have never needed it until your orange fuckhead came on the scene. Know why: because every previous president had morals and your boy has none.

      1. Well, except for ‘Tricky Dicky’ Nixon. He had no morals. He even famously opined to David Frost that “when the President does it, that means that it’s not illegal”. That’s little donnie j.’s mantra.

  3. Here’s the fly in this ointment, Stu: what is an “official act” and who decides what it is? It seems to me that the SCOTUS is going to be the final word on that. Can you see them allowing Trump to do things that they would not allow another POTUS to do? They have already said bribery is okay and that normal regulatory bodies can be overridden by legal entities with little technical knowledge of the subject matter in question. I have little doubt that people like Alito, with his fucked-up flags, and Thomas, with his fucked-up wife and litany of free trips from conservative donors, would do so.

    Given the aforementioned, there is simply NO WAY those two should not have recused themselves from any cases that involved 1/6 or anything involving the people from whom they received personal favors such as trips, cash, etc. If nothing else, the mere suggestion of impropriety compromises the decisions made.

    As far as the Justice Department, it needs to be free of Presidential direction, without a doubt. But has there been an ounce of proof that has NOT been the case with Trump? Do we have ANY evidence that Biden directed these actions, or are we just gonna truck along and pretend there is?

    I side with Somomayor: With fear for our Democracy, I dissent.

    1. Dissent is fine. To answer your question, the lower courts will decide on “official” and not, and that will be debated for years.

      1. And what ever the lower courts define as official will be disputed and end back at the Supreme Court. Just like the immunity ruling did.

          1. America never needed Presidential immunity until Trump left office.

            I can always tell when I am right because you revert to Tough Guy Stu and use petty insults as if they actually offended someone. Its not a good look for you and you lose what little credibility every time you do it.

          2. It’s not Tough Guy Stu. It’s pansy, bed-wetter, no-name Judah.
            Btw, I am reviewing my “do not block assholes” policy. You have been warned.

          3. I would remind you, again, that no one is forcing you to respond to me and you don’t have to respond.

            But what do I know, I’m only a pansy, bed wetter.

    2. Freeze,

      calm down and stop listening to the chicken littles in the media.

      If you want to weigh in on these Supreme Court decisions, read the case and the decisions carefully.

      I am pretty sure the supremes did not give Trump permission to bribe anyone and assuming your other reference is to Chevron, it does not transfer regulatory authority to legal entities. Chevron is a double edged sword that needed to be reviewed as some of these agencies act beyond the intent of congress.

  4. I believe if SCOTUS had not ruled the way that they did , that the power of the President would be decreasing to almost an figure head position than one ruling a nation. More House and Senate Power with no “buck stops here” ruling. The hate needs to stop. Whether it is Democrats or Republicans. If someone is elected, we need to stand by and watch the system work. I want to think that could happen again, but we have become enemies to ouselves, hate over parties, it doesn’t make sense. If we can’t live as a nation united, then we may as well spit into two countries. It almsost seems that we have already, one law for each party. No one can agree on anything. Bipartisan is becoming a joke, and not a funny one at that.

  5. Would they prosecute George W. Bush for “shock and awe”?
    Harry S Truman for dropping the atomic bomb?
    Franklin Delano Roosevelt for incarcerating Japanese-American citizens?

    These were all official as part of government policy. Should Liz Cheney face a military tribunal for treason. which Trump has stated he wants to do. Trump has stated that he will shutdown any protests against him if he is elected, which violates the First Amendment. Should he be allowed to do this? Or is all of this over reach.

      1. When he says American Jews who do not vote Republican are disloyal you should ask yourself. How many times do you think he is going to play a verbal game of chicken before he follows through? If he is elected this time there will be nothing to stop him from destroying democracy, here and abroad.

          1. “Immigrants are taking Black and Hispanic jobs” -Trump

            Tell me Stu, what are Black and Hispanic jobs?

    1. When Trump says it he means it. Failure to take his words seriously is the same reason the why dictators come to power in democracies.

      1. Your the most paranoid person on here. I think you should seek help. You have a very severe case of Trump derangement syndrome.

  6. It’s hard to believe Stu, that it’s been five years! Also, how sad this post has turned into a left-wing- who- can-insult-the-most joke. Still, congratulations on your fifth year and stay healthy.

      1. I am amazed at your patience with some of the dickheads who infect your column. Perhaps you should (after a wonderful five years) put the deckheads on notice.: “This far and no further.” Just a thought.

      1. No Country for Old Men (Or Women, For That Matter)

        Growing old in a country you no longer recognize.
        Those of us who were part of the Baby Boom generation, now in our 60s, 7Os, and 80s, no longer recognize the nation in which we grew up. We are strangers in a land that gets stranger by the day.
        We believed in the American dream. We worked hard, paid our taxes and obeyed the law —even laws we thought were idiotic.
        We married and had children. Today’s young adults cohabit and have pets.
        We struggled to raise families. Some of us went to war, like our fathers and grandfathers before us. We thought that when we grew old, there would be more for us – more than alienation.
        Most of us don’t recognize Biden’s America. Patriotism has become passé. Our military is led by men who are social workers and politically correct hacks. They can’t fight, but they’re great at getting soldiers to use preferred pronouns and combating imaginary racism in the ranks.
        Giant corporations have replaced individual enterprise, which – in many cases – has been taxed and regulated out of existence. Government bureaucrats and corporate executives are like the pigs and men at the end of Orwell’s “Animal Farm.”
        We look in vain for a Ronald Reagan, a Lincoln or Teddy Roosevelt. Instead, we find corrupt clowns like wizened Nancy Pelosi, Commissar Ocasio-Cortez (the Cuban pinup girl selling socialist snake oil) and our president – a cranky septuagenarian slipping noisily into senility.
        If we’re white, we’re told that we are responsible for every problem that plagues people of color. That’s right, we’re to blame for the roughly 70% of black children born out of wedlock (we forced their parents to behave irresponsibly), just as cops are to blame for the deaths of thugs who threaten their lives.
        Savages who burn down cities are hailed as heroes and celebrated as warriors for social justice. But misguided middle-class citizens, among them veterans, who trespassed in the Capitol 14 months ago are branded as traitors and insurgents.
        Mayors take down statues of Washington and Columbus and commission murals of George Floyd.
        If you’re white, you’re also responsible for slavery, segregation, the Wounded Knee massacre and Japanese Americans interned during World War II. Racism is in our blood, they tell us. Remember, throughout the course of human history, racism has never existed anywhere but here.
        By “despoiling the earth,” we’re also responsible for climate change. If we end up paying $7-a-gallon for gas – well, it’s our own damned fault.
        Forget racial minorities. Now, we’re told that there are “sexual minorities” — that people who used to be considered odd are in fact oppressed. And that a man who thinks he’s a woman in fact is a woman – and is entitled to use the ladies’ room with our granddaughters. And if we refuse to accept this bizarre fantasy, we are hateful!
        What passes for entertainment is sickening – all blood and gore, sadistic killers, aliens who pop out of people’s stomachs and monsters in various guises. We search in vain for contemporary movies with characters we can admire or at least care about. So we retreat to cinema of the 40s and 50s on TCM.

        On top of living in a country that’s unrecognizable, we can’t even afford to live here anymore. You need a second mortgage to buy a steak. A hamburger and fries at McDonald’s is a gourmet feast.
        Filling up the tank is agonizing. Paying confiscatory taxes marks us as serfs. Inflation is at an almost 40-year high, and politicians tell us it’s because government isn’t spending enough. Most of our parents could retire at 65, in the mortgage-free home they bought in their 30s. We’re still working at 75. Retirement is a distant dream. We’re working to provide benefits for illegal aliens, addicts and loons who camp out and defecate on the streets. Many of us are the children and grandchildren of immigrants, a fact of which we are proud. Our people helped to build this country. But we witness with unalloyed horror the tide flowing across our southern border unimpeded. The middle class view them as criminals, gang members and mooches. The Democratic party sees them as voters. We can’t defend our own borders, but are expected to defend those of distant lands.

        This used to be an English-speaking country. Now it’s ballots in 20 languages, court interpreters and press one for Spanish, Chinese or Serbo-Croatian.

        Our feeble president (who’s been sucking on the federal teat for half-a-century) is unable to perform his Constitutional duties, but has successfully waged war on domestic energy production. We went from energy independence to beggars with a gas can in a matter of months. The corpse that walks says climate change is the biggest threat to our national security – along with transphobia.
        Washington sputters about Putin’s war on Ukraine, but imports 670,000 barrels of Russian oil a day. While he lets pipelines rust and our oil, coal and natural gas remain in the ground, Biden pleads with the Saudis to pump more – and is thinking about imports from the Marxists of Venezuela and the jihadists of Iran, both Russian allies. Apparently, oil from anywhere outside the U.S. doesn’t pollute.
        Officeholders for life treat us like mentally-challenged children. They snicker at those who pay their exorbitant salaries.
        So we limp along into old age, too proud to go on the dole and too stubborn to just give up.

        Besides, surrender now would be a betrayal of the America that once was.

        1. Very well said. But the uninformed sheep in this country will call you a racist and anything else they can think of because they are brainwashed to think you are wrong. Gone are the days when Americans were self reliant and accountable. Now people want free things from the sweat of someone else’s labor and feel know shame about it. What has happened to our once great country.

        2. You are so full of shit your eyes are brown.
          Hey dumbass bigot, Republicans are for corporations & the rich, not the working & middle classes. It’s Republicans and their “Free Traders” like Milton Friedman who shipped American jobs and industries overseas to places like China, so they don’t have to pay decent wages & benefits and they pocket the savings. For years big businesses profited from illegal immigration by paying very low wages. And not long after the Tiananmen Square massacre, it was a Republican President toasting the “Butchers of Beijing”,
          Mr. ‘New World Order’ G.H.W. Bush.
          You said ‘Russian allies’. You must mean Trump🤡, who is an easy mark for the likes of Killer Putin and Kim Jong Un.

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