The President's Power: Asking For Legal Trouble?

The question of whether a US president can ask someone to break the law is a complex one, with no clear-cut answer. While the Constitution does not explicitly grant the president immunity from prosecution, the Supreme Court's decision in Trump v. United States set a precedent for constitutional immunity from criminal liability for presidents' official acts. This means that a president who uses their official powers to break the law may be insulated from criminal prosecution. However, it's important to note that this decision only removes the possibility of criminal accountability, and other forms of accountability, such as civil lawsuits and the ballot box, remain in place. The threat of criminal prosecution has been considered an important incentive to prevent presidents from breaking the law, but with this decision, the incentive is largely gone.

Presidential immunity from prosecution

The concept of presidential immunity in the United States holds that a sitting president has civil and criminal immunity for their official acts. However, it is important to note that neither civil nor criminal immunity is explicitly granted in the Constitution or any federal statute. The Supreme Court's interpretation of presidential immunity has been criticised for undermining democracy and giving presidents a license to subvert the democratic process.

The Supreme Court has ruled that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". For acts that fall within the "'outer perimeter' of their official responsibility, a president enjoys presumptive immunity. This distinction between "absolute" and "presumptive" immunity has been criticised for providing an incentive for presidents to commit crimes under the guise of official conduct.

In the case of Trump v. United States, the Supreme Court ruled that allegations against former President Trump tied to his commandeering of the Department of Justice should be dropped, as they fell within his official duties. This ruling has been criticised for potentially letting Trump off the hook for attempting to overturn the 2020 election results.

The Department of Justice has also asserted that the president is immune from federal criminal prosecution, a view supported by a pair of memoranda from the Office of Legal Counsel. However, it is important to note that Congress has the power to enact legislation providing immunity to the president if it deems necessary.

While the president may enjoy immunity from prosecution for official acts, they can still be impeached and removed from office. This process is a political matter, separate from civil and criminal proceedings.

Congress's power to prosecute

While the US Constitution does not expressly authorise Congress to conduct investigations, Congress and the courts have long recognised that Congress has an inherent, constitutional prerogative to do so. Congress has the authority to investigate "in aid of its legislative function". This authority can extend to investigations for the purpose of deciding whether legislation is appropriate, to information gathering on matters of national importance, and to oversight of federal departments and executive agencies.

Congress has no legal authority to charge someone with a crime. Only federal prosecutors working for the Department of Justice can bring federal charges. However, Congress can refer criminal charges to the Department of Justice for investigation and potential prosecution. Congress can also recommend a prosecution to the executive branch, but there is no requirement for the executive branch to act on it.

Congress can provide privileges and immunities to the president if it thinks the president shouldn't be prosecuted or sued civilly. However, the Constitution itself does not grant immunity to the president from prosecution and civil suits.

Supreme Court's Trump v. United States ruling

In 2024, the Supreme Court's ruling in Trump v. United States addressed the question of whether former President Donald Trump could be criminally prosecuted for actions taken during his presidency. The case centred around charges brought against Trump by Special Counsel Jack Smith in August 2023, accusing him of using force and deceit to overturn the results of the 2020 election, in violation of federal law. In response to these charges, Trump argued that he had immunity from criminal prosecution for any actions taken during his presidency.

The Supreme Court's ruling, delivered by Chief Justice Roberts on July 1, 2024, held that a former president is entitled to at least presumptive, if not absolute, immunity from prosecution for official acts. The Court's decision made a distinction between three types of actions a president may take. Firstly, actions taken as part of their core constitutional authority, which are deemed to merit absolute immunity. Secondly, official acts that are not considered core constitutional powers, for which the Court granted presumptive immunity. And finally, unofficial acts, for which the Court stated that there is no immunity from prosecution.

The ruling resulted in a 6-3 decision, with Justices Thomas, Alito, Gorsuch, and Kavanaugh joining Chief Justice Roberts in full, and Justice Barrett joining except for Part III-C. Justice Sotomayor filed a dissenting opinion, joined by Justices Kagan and Jackson. The ruling had significant implications for the upcoming 2024 election, as it delayed Trump's federal election interference charges. The decision also sparked debate about presidential immunity and the rule of law, with critics arguing that the ruling put the president above the law and threatened the foundations of American democracy.

Presidential immunity after leaving office

Presidential immunity is the concept that a sitting US president has civil and criminal immunity for their official acts. While the Constitution does not explicitly grant immunity from prosecution and civil suits upon presidents and former presidents, the Supreme Court of the United States found in Nixon v. Fitzgerald (1982) that the president has absolute immunity from civil damages actions regarding conduct within the "outer perimeter" of their duties.

In Clinton v. Jones (1997), the court ruled against temporary immunity for sitting presidents from suits arising from pre-presidency conduct. The Eighth Circuit Court of Appeals ruled in Jones' favor, stating that the district court could not grant "temporary immunity" to presidents. The Supreme Court unanimously affirmed the decision of the Court of Appeals.

In Trump v. Vance, the Court addressed whether the president has absolute immunity from a state criminal proceeding. The Court held that Article II and the Supremacy Clause do not preclude a district attorney from subpoenaing a sitting president. In 2019, the New York County District Attorney's office subpoenaed President Donald Trump's accounting firm. Trump sued the district attorney and the accounting firm in federal district court, arguing that presidential immunity protected him due to his status as a sitting president.

On July 1, 2024, the Supreme Court ruled in Trump v. United States that presidents have absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". For official acts that do not fall within this inner core but are within the "outer perimeter of his official responsibility", a president enjoys at least presumptive immunity. When it comes to unofficial acts, there is no immunity.

The Justice Department says the president is immune from federal criminal prosecution. However, there is no requirement that the DOJ prosecute someone because the House or the Jan. 6 committee believes the president committed a crime. Congress can turn over evidence of a crime to the executive branch and recommend prosecution, but there is no requirement for any action to be taken.

Presidential abuse of power

While the US Constitution does not explicitly prohibit a president from asking someone to break the law, it does require the president to act in good faith and take an oath to "faithfully execute the Office of President". The Take Care Clause, also known as the Faithful Execution Clause, mandates that a president shall "take Care that the Laws be faithfully executed". This clause underscores the importance of the president acting in the public interest rather than for personal gain.

Throughout history, several US presidents have been accused of abusing their power, with some instances leading to impeachment proceedings. One notable example is the Watergate scandal involving President Richard Nixon, which led to his resignation in 1974. The scandal revealed that Nixon had abused his power by using government agencies for political intelligence and interfering in the administration of justice.

Another instance of presidential abuse of power occurred when President Donald Trump declared a national emergency in 2019 to secure funding for his proposed wall along the southern border. This declaration was seen as an abuse of emergency powers as there was no evidence of a sudden or unforeseen crisis at the border. Trump has also been accused of obstructing the Russia probe and interfering with the investigation into the 2016 election, with Special Counsel Robert Mueller's investigation uncovering ten instances of potential obstruction.

The National Emergencies Act (NEA) grants the President significant discretion in declaring a national emergency, unlocking enhanced powers with the potential for abuse. For instance, the President can take over communication facilities, seize Americans' assets without judicial process, and exert control over domestic transportation.

To prevent and address presidential abuse of power, Congress plays a crucial role in providing oversight and conducting investigations. Legislative reforms have been proposed to reinforce the system of checks and balances, increase transparency, and enforce limitations on executive power.

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