Last week, the US Supreme Court addressed the issue of presidential immunity during official acts, and many people were very upset about it.
Many hysterically claimed the court weighed in favor of conservatives and ruled the court gave the president unchecked power. Media sources said it was a “Blueprint for Dictatorship.”
Should we charge every president with a crime when they leave office?
During the Global War on Terror, the US killed about 4700 suspected or alleged terrorists with drone strikes. The majority of those drone strikes occurred during President Obama’s tenure.
The harsh truth of those drone strikes is that President Obama acted in accordance with what he believed was his duty. All presidents are bound by oath to act…
And will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
On May 22, 2013, the Brookings Institute reported that former US Attorney General Eric Holder said some of those drone strikes killed American citizens. Those Americans were suspected terrorists and were internal enemies of the state.
However, President Obama ordered, and the military conducted, the strikes against American citizens in violation of several Constitutional principles. The Fifth Amendment guarantees that no person shall be “deprived of life, liberty, or property, without due process of law.” The killing of American citizens without a trial or any form of judicial process directly violates this fundamental right. The Sixth Amendment guarantees a right to a trial. Executing American citizens suspected of terrorism without a trial denies them this constitutional right.
In Hobbesian terms, the absence of a world government results in global anarchy and compels states to ensure their own security. Violent extremism threatens US security. The president has a duty to maintain regional stability, which is crucial for protecting the American homeland.
Should we have charged President Obama with crimes when he left office? No. He had immunity for the conduct necessary to support his Constitutional duties.
How about FDR and Heart Mountain?
During World War II, Franklin D. Roosevelt ordered the internment of American citizens of Japanese descent through Executive Order 9066. Conditions in the camps were brutal, with inadequate housing, poor sanitation, and limited medical care. The forced removal of Japanese Americans from their homes without warrants or cause and the confiscation of their property violated the 4th Amendment. Detaining the Americans without charges or a fair opportunity to contest their detention in court violated their right to Habeas Corpus (Article I, Section 9).
We now consider the internment of Japanese Americans one of the most egregious violations of civil liberties in American history. The event demonstrates the importance of protecting constitutional rights, especially during times of national crisis.
Would we today charge FDR with crimes?
One could argue that both Obama and FDR acted in what they believed was the nation’s best interest. But what about clear cases of corruption?
How about President Warren G. Harding, who transferred control of the Teapot Dome oil field in Wyoming to Secretary of the Interior Albert B. Fall? Private oil companies then paid Fall bribes equivalent to about $6 million today. Though Harding didn’t get any money, what role did he play in the event?
Or Ulysses S. Grant and the Whiskey Ring Scandal? The ring involved bribing Treasury Department officials to underreport the amount of whiskey produced, reducing owed taxes. The conspirators then shared the defrauded taxes amongst themselves. Only President Grant’s testimony on behalf of his personal secretary and friend, General Orville Babcock, saved Babcock from conviction for his participation in the ring.
More than one president could have been subject to criminal charges for their actions. Are presidents above the law? No. But we have treated them with immunity.
Back to the matter at hand.
We can judge whether President Trump’s acts on and around January 6th were official duties, and the courts will weigh in in the coming months. I doubt the courts will turn fast enough to judge his role in the mob desecration of the US Capitol Building before the election. The real jury of whether the mob attempted to overthrow the republic will be the American people on November 5th.
However, regarding immunity, America has demonstrated for many years that presidents have immunity during official acts and have presumptuous immunity for even unofficial acts. The Supreme Court’s decision only affirms how we have acted since our earliest years.
America is an imperfect democratic republic. Presidents make tough choices, and we need to elect people of high character.
Presidents from either party must be able to act to preserve, protect, and defend the republic without fear of being charged with a crime when they leave office.
May God bless the United States of America.
