Recently, the U.S. Supreme Court ruled that U.S. Presidents while in office have absolute immunity from criminal prosecution for official acts as outlined in the Constitution, but no immunity for personal actions.  On the surface, this may seem reasonable to some people, but it begs a further analysis.

Official Duties of the President

One of the problems with the ruling is that a President’s “official acts as outlined in the Constitution” are broad, varied, and open to massive interpretation.  Specifically, Article 2 of the U.S. Constitution enumerates the President’s official duties as follows:

• He/She is responsible for preserving, protecting, and defending the Constitution of the United States.
• He/She is Commander-in-Chief of all U.S. military forces.
• He/She has the power to grant reprieves and pardons for offenses against the Nation.
• He/She has the power to make treaties with foreign States (with Senate consent).
• He/She is responsible for appointing all Officers of the U.S., including ambassadors, ministers, judges, etc. (with Senate consent).
• He/She is required to periodically give Congress information of the State of the Union.

In addition to these explicit duties, the President also has other presumed duties, which are either stated elsewhere in the Constitution or have become generally accepted for practical reasons.  They are as follows:

• He/She can propose legislation to Congress, sign bills into law, and veto bills with which he/she disagrees (unless Congress overrides the veto with a two-thirds majority).
• He/She oversees the Nation’s economic policies, working with Congress to formulate and prioritize our budgets.
• He/She represents the U.S. on the international stage, managing foreign policy. He/She also represents the country at official events and ceremonies.

The Abuse of Power

Clearly, the duties outlined above can be applied both narrowly or broadly, depending on a given person’s perspective.  For example, in the name of defending the Constitution of the United States, almost any action can be justified by those who wish to choose the broadest interpretation.  Let’s say that a President believes a given law is a threat to the principles of the Constitution as he/she envisions them.  In that case, the President can ignore the law, take actions to violate it, and use the power of the Presidency to force his/her will upon others – all with impunity.  Or worse still, he/she might decide that an important election has been rigged and therefore feel justified in ignoring the results in the interest of preserving our democracy as outlined in the U.S. Constitution.  In short, if ever we have a President who wishes to act in bad faith, there is no limit to the damage he/she can do “in defense of our Constitution.”

Similarly, as Commander-in-Chief, if a President asserts that the country is in imminent danger even if it isn’t, he/she can command immediate military action without Congressional approval and with absolute immunity.  And without any risk of prosecution, it is further possible for a President to covertly authorize individuals to commit an array of criminal acts.  If these individuals were ever brought to trial and convicted, the President could pardon them with no repercussions.  These are only a few examples of how the powers of the President can be abused if unconstrained, based on just the first three official duties granted to the President by our Constitution.

Past Precedence

It should be evident at this point that the Supreme Court has taken an egregious misstep by issuing this latest ruling.  The ruling also flies in the face of overwhelming past precedence.  Throughout our history, the tenet that no one is above the law ruled supreme.  In a democracy, this fundamental precept is even more urgently required for those in positions of power, since it is well recognized that power can corrupt people.  Given the broad powers of the office of the President, it is particularly important for the President to be a model citizen.  After all, he/she is our supreme representative, both domestically and abroad.

The current Supreme Court itself confirmed this notion on or about January 19, 2022, in the case involving former President Donald Trump’s attempt to prevent the House Committee investigating the January 6th Capitol riot from accessing his administration’s records.  The Court’s decision allowed the release of these documents, and by doing so, reinforced the principle that even the President is not above the law. In essence, the ruling affirmed that Presidential immunity must yield to legitimate Congressional oversight, and underscored the importance of transparency in government.

Impact of the New Ruling

With the Supreme Court’s latest revision to past precedence, they have distorted the balance of power that was so carefully crafted into our Constitution.  They have elevated the power of the Presidency, and in doing so, have increased the potential for the abuse of power without remedy.

In July 2024, former CIA Director, John Brennan, who served under six U.S. Presidents, summarized the impact of the Supreme Court’s latest ruling as follows:  “By rewriting the rule that has governed presidential authority for the past 235 years – that no one, not even the president, is above the law – the court has given a green light to any future president inclined to wield his or her executive authority irrespective of the laws that apply to all other citizens and residents of the U.S.  King George III would be pleased.”