Executive Power: Can A President Break The Law?

The question of whether a president can break the law has been a subject of debate and legal interpretation in the United States. While some argue that the president is not above the law and can be held accountable for criminal acts, others, including the Supreme Court, have granted immunity to presidents for official acts, creating a precedent that suggests presidents are above the law. This has sparked concerns about the balance of power and the potential for abuse of authority. The personal character and integrity of the president become crucial in preventing unethical or corrupt actions, as the presidency has accumulated significant power over time. The immunity granted by the Supreme Court has raised questions about the rule of law and the original intent of the Constitution, with scholars warning of a potential crisis if this immunity is exploited by future presidents.

Presidential immunity from prosecution

Presidential immunity is the concept that a sitting US president has both civil and criminal immunity for their official acts. This immunity from civil damages is in relation to conduct within the "outer perimeter" of their duties. However, it is important to note that this immunity does not extend to unofficial acts, and a president can be subject to criminal prosecution for such acts.

The Supreme Court's ruling in Trump v. United States in 2024 affirmed that the president has absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". This ruling has been criticised as setting a dangerous precedent that places the president above the law.

The court differentiated between three types of presidential action:

• Actions within the president's exclusive constitutional authority, such as serving as commander-in-chief, recognising foreign governments, and signing or vetoing bills passed by Congress.
• Actions outside the scope of the president's constitutional authority, such as filing for reelection or setting up a campaign committee, for which there is no immunity.
• Actions in a "zone of twilight," where the president and Congress share powers or where actions fall within the outer perimeters of the presidential office.

The question of presidential immunity from prosecution has been a subject of debate among legal scholars and has evolved over time. Some scholars argue that the president should have immunity from arrest and criminal prosecution to enable them to serve the public without the risk of being punished for doing what they think best serves the country.

In the specific case of former President Trump, the Supreme Court ruled that he is at least presumptively immune from prosecution for conversations with Vice President Pence related to the January 6 attacks on the US Capitol. However, the court returned the case to the lower courts to determine whether Trump's actions were official or unofficial, and to what degree of immunity they would entitle him.

Criminal prosecution after leaving office

The question of whether a sitting or former US president can be prosecuted for criminal acts has been a subject of much debate and has evolved since the nation's founding. While the Constitution does not explicitly grant immunity from prosecution to sitting or former presidents, the Office of Legal Counsel (OLC) within the Department of Justice has issued memorandums concluding that it is unconstitutional to prosecute a sitting president. The OLC's argument is based on the idea that prosecuting a sitting president would "hamstring the operation of the whole governmental apparatus" and cause distraction and distortion in the president's official duties.

However, in recent years, there have been concerns that presidents are being granted broad immunity from prosecution, allowing them to commit crimes under the guise of official actions. In the case of Trump v. United States, the Supreme Court ruled that presidents have constitutional immunity from criminal liability for their "official acts" or anything done using the powers of their office. This decision has been criticised by scholars and legal experts, who argue that it puts the president above the law and poses a direct threat to democracy and the rule of law.

Despite the immunity granted by the Supreme Court, there have been calls for the prosecution of former President Trump on multiple matters that could lead to criminal charges. To address concerns of partisanship, Yale Law School professor Ian Ayres proposed the idea of impanelling a "prosecutorial jury" of former US attorneys appointed by both Republican and Democratic presidents before prosecuting a former president. This jury would assess whether the former president has committed an indictable offence, and only then would a special counsel seek an indictment from a regular grand jury.

While the threat of criminal prosecution after leaving office may serve as a deterrent for presidents, it is important to note that the power to hold presidents accountable also lies with Congress, which has important powers of oversight, the purse, and lawmaking to check even a rogue president.

Civil lawsuits against the president

The question of whether a sitting or former US president can be sued in civil court has been the subject of much debate and several Supreme Court cases. While the Constitution does not explicitly address this issue, legal scholars and courts have interpreted it differently over time.

In the 1982 case of Nixon v. Fitzgerald, the Supreme Court held that the president is immune from civil lawsuits seeking monetary damages for official acts performed while in office. This decision was based on the idea that civil litigation could distract the president and hinder their decision-making process. However, the court clarified in Clinton v. Jones in 1997 that sitting presidents can be held liable for civil damages for actions committed before assuming office.

The Supreme Court's decision in Trump v. United States further complicates the matter. In this case, the court ruled that presidents have constitutional immunity from criminal liability for "official acts" performed while in office. This ruling has been criticised as setting a precedent that places presidents above the law and removes a crucial incentive for them to abide by it.

Despite these rulings, civil rights organisations and legal scholars have continued to hold presidents accountable through other means. For example, in response to President Trump's memorandum targeting lawyers who file lawsuits against his administration, 22 civil rights organisations, including the NAACP and the American Civil Liberties Union, spoke out against what they saw as an attempt to "chill dissent" and "avoid accountability". Additionally, the Justice Department has conducted investigations into former President Trump's actions, and Congress has the power to provide oversight and check even a rogue president.

While the Supreme Court has provided some guidance on civil lawsuits against the president, the specific applicability of these rulings to state courts and private conduct remains unclear and subject to ongoing legal debate.

Congress's role in prosecution

The U.S. Constitution does not explicitly address whether a sitting president can be prosecuted, and ideas about presidential immunity have evolved over time. While the Constitution does not explicitly grant the president immunity from prosecution, the Office of Legal Counsel (OLC) has issued memoranda concluding that prosecuting a sitting president is unconstitutional. The OLC's argument is based on the idea that the president is the “symbolic head” of the nation, and criminal proceedings would “hamstring the operation of the whole governmental apparatus."

The Supreme Court has ruled that former presidents are entitled to absolute immunity from criminal prosecution for actions within their constitutional authority while in office. This includes core presidential powers such as granting pardons, removing executive officers, and discussing potential investigations with the Justice Department. However, the Supreme Court has also ruled that a president can be prosecuted for unofficial acts and may be criminally prosecuted after leaving office.

Congress plays a crucial role in the prosecution of a president. While Congress cannot directly prosecute a sitting president, it has the power to initiate impeachment proceedings, as seen in the cases of Nixon and Clinton. Congress can also turn over evidence of a crime to the executive branch and recommend prosecution. Additionally, Congress has important powers of oversight, the purse, and lawmaking that can check even a rogue president.

In the case of former President Trump, Congress played a role in investigating his actions related to the January 6 committee. The House of Representatives impeached Trump twice, and the Senate later acquitted him. The Justice Department is currently conducting investigations of Trump on multiple matters that could lead to criminal charges.

Supreme Court rulings on presidential immunity

In the United States, the Supreme Court's ruling on presidential immunity has been a contentious issue, with some arguing that it grants presidents a "blank check" to break the law. The Court's decision in Trump v. United States has sparked significant debate and concern among legal scholars and organizations like the ACLU.

In the case of Trump v. United States, the Supreme Court ruled that former President Donald Trump was immune from criminal liability for his official acts while in office. This ruling set a precedent for broad immunity for presidents' "official acts," even if they were undertaken for personal or criminal purposes. The Court's decision was criticized for potentially placing presidents above the law and undermining democratic accountability.

The Supreme Court's ruling on presidential immunity has been characterized as a radical departure from the Constitutional order and American history. Critics argue that it elevates the president to a position akin to a monarch, contradicting the fundamental American value that no one is above the law. This decision has sparked concerns about the potential risk it poses to democracy and the rule of law.

The Court's ruling grants absolute immunity to President Trump's use of the Justice Department for fraudulent purposes, such as his attempts to obstruct the election results. However, it left the determination of immunity for other allegations to lower courts. The decision provides a combination of "absolute" and "presumptive" immunities for all "official" acts, leading to concerns about shielding presidents from accountability.

While the Supreme Court's ruling on presidential immunity has been controversial, it is important to note that the courts, Congress, and the people still have mechanisms to hold presidents accountable. The threat of criminal prosecution remains a crucial incentive to prevent presidents from breaking the law, even if it has never been used in the past. Additionally, Congress possesses oversight powers, control over funding, and lawmaking capabilities to check even a rogue president.

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