Common Sense Presidential Immunity

If anything, the Supreme Court undersold their argument for presidential immunity.

While Monday’s Supreme Court ruling clarifying that presidents have immunity for all official actions taken in office may have shocked members of the left-wing commentariat, the decision in fact represented the logical conclusion of precedent, history, and constitutional law within the American tradition. With that said, however, the Supreme Court did miss an important argument concerning sovereignty and the historical power of the executive under common law. 

Sir Thomas Smith, a prominent Elizabethan jurist, in his work De Republica Anglorum, which summarizes the operation of the English constitution and common law, directly addresses the question of emergency powers of the executive, indicating that the executive precedes the law and is not “under the law” in a normal sense.

Smith argues the executive (the monarch in the English context) has two roles. One, as part of standard parliamentary government, wherein the executive assents or vetoes bills, representing his existence as the foremost of the constituent parts of the realm and legal order. Two, as the sovereign charged with protecting the realm and the law, even if the latter must be abrogated. In cases of necessity, Smith writes, the executive “hath also absolute power, so that his word is law.”

Smith clearly favored all parts of the commonwealth being represented through the estates of Parliament, acknowledging that in cases of emergency, the executive necessarily has these powers over and above the law, otherwise sovereignty would not exist, as no part of the commonwealth (in Britain numerous estates represented in Parliament, or in the United States, the branches of government) could declare a state of emergency.

Smith’s work is directly applicable to understanding American law, as his writings served as the dominant treatise on the English Constitution through England’s constitutional crises of the 17th century, which were foundational to the American founder’s understanding of the unwritten English constitution and its adaptation to a republican context in the American written Constitution.

We can see in it that the American founders would have presupposed the executive, the president in our context, to be above the law, insofar as his duty as executive extended beyond merely his standard role in vetoing or signing bills, but also to the exercise of power through diplomacy and to the protection of the legal order through executive power (including the ability to abridge that order in times of crisis).

This exercise of sovereign power and the duty to carry out the law creates a situation where the executive is, by definition, “above the law.” Unlike the English monarch, the two estates represented in Congress, the people through the House and the states through the Senate, have recourse to depose an executive through impeachment. Thus, “above the law” does not mean total unaccountability. The proper method of holding a president accountable is impeachment — not the judicial system.

Replacing an executive requires special constitutional means, rather than standard legal ones. This only bolsters the case that the American founders intended the executive to be above and immune from the law, with the ability and duty to protect the commonwealth by any means necessary, though not wholly detached from the estates represented in Congress. Of course, this immunity does not cover “unofficial” actions, especially those done before or after one is president. Therefore, prosecution of Biden for Burisma (or his many other crimes) is perfectly legitimate.

However, this merely recognizes the fact that the president is independent of Congress, through separation of powers, and holds executive power in his own hands. The ability to remove a president via impeachment further requires a significant enough majority that it would never be effective apart from a genuine state of emergency, or a contrived one (such as the coup against Nixon, who was also completely vindicated by the court’s decision). The American president is no mere Doge of Venice (serving at the whim of the Great Council), but is instead the full legal bearer of executive power. 

Through this historical basis, we can see that President Trump, in his official actions as an executive, is immune from prosecution for his official actions taken to protect the American polity and its legal order, as in our system of common law, the executive exists to protect, promulgate, and execute the law, rather than to be directly its subject.

At the time Trump was the executive, it was his duty to exercise executive power to preserve the legal order over which he sat — including attempts to secure the 2020 election. As that same legal system is trying to prosecute him for executing upon his responsibilities as he saw fit, it is falling into anarchy. One of the two traditional roles of the executive under common law, as the protector and arbiter of the constitutional order, is being lost and risks the body politic, more than it already is, becoming a body without a head.

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