Presidential Protocol: Law Or Suggestion?

In the United States, the Supreme Court's decision to grant presidents immunity from prosecution for criminal acts committed while in office has set a precedent that presidents are above the law. This decision has sparked debates about the limits of presidential power and the potential consequences of a president acting without regard for legal consequences. While the Supreme Court's ruling establishes immunity for official acts, the term remains ill-defined, leaving lower courts to determine its scope and leaving the president with broad immunity from prosecution. This lack of clarity has raised concerns about the potential for abuse of power and the impact on public trust in government, especially given the far-reaching implications for executive power and the checks and balances provided by Congress.

Immunity from prosecution for official acts

Immunity from prosecution is a legal protection that shields an individual from criminal prosecution for a particular offence or set of offences. This protection is typically granted by a prosecutor or a court and can be granted in two forms: use and derivative use immunity. Use immunity protects a witness from having their own testimony used against them, while derivative use immunity prevents the government from using any evidence or information derived from the witness's testimony against them.

In the context of presidential immunity, the Supreme Court has ruled that former President Trump is immune from criminal liability for his official acts, including his attempts to use the Justice Department to obstruct the results of the election. The court's decision sets a precedent that grants presidents substantial immunity for their official actions, even if they are undertaken for personal or criminal purposes. This ruling has been criticised by the American Civil Liberties Union (ACLU), which argues that it places presidents above the law and undermines the principle that everyone, including the president, is equal under the law.

The concept of immunity from prosecution is not limited to presidents or the United States. It is a doctrine of international law that allows accused individuals to avoid prosecution for criminal offences. There are two types of immunity: functional immunity and personal immunity. Functional immunity is granted to individuals who perform certain functions of state, while personal immunity is granted to certain officials because of the office they hold rather than the acts they have committed.

The implications of presidential immunity and its impact on the separation of powers and the rule of law are complex and continue to be debated by legal scholars and experts.

Immunity from prosecution for unofficial acts

In the United States, the Supreme Court has ruled that the president has absolute immunity from criminal prosecution for official acts within their "exclusive sphere of constitutional authority". This means that a president cannot be prosecuted for acts carried out as part of their core constitutional duties, such as appointing judges or issuing pardons.

However, this immunity does not extend to unofficial acts. The Supreme Court has clarified that presidents can be prosecuted for private acts, or acts carried out in a personal capacity that are not related to their official duties. This means that if a president commits a crime unrelated to their role, they can be held legally accountable.

The distinction between official and unofficial acts is crucial. The Supreme Court has determined that there is a "presumptive immunity" for official acts that fall outside the inner core of constitutional authority but are still within the "outer perimeter" of a president's official responsibility. This means that there is a presumption that these acts are immune from prosecution, but this presumption can be rebutted in court.

The concept of presidential immunity is not explicitly mentioned in the US Constitution or federal statutes. However, courts have historically recognised absolute immunity for presidents regarding civil damages actions within the scope of their duties. The Supreme Court's recent rulings in Trump v. United States have expanded this immunity to include criminal acts within a president's official duties, setting a precedent for future presidents.

It's important to note that presidential immunity does not apply to acts committed before or after a president's term in office. Once an individual leaves office, they can be prosecuted for any crimes committed during their tenure, regardless of whether the acts were official or unofficial.

Destruction of federal documents

The PRA also covers most of the Executive Office of the President (EOP), including the White House Office, the Office of the Vice President, the National Security Council staff, and other EOP components.

The destruction of federal documents is prohibited by 18 U.S.C. § 1519, which states that anyone who:

> "knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States [...] shall be fined under this title, imprisoned not more than 20 years, or both."

Additionally, 18 U.S.C. § 2071 prohibits the destruction of government records or attempts to destroy such records. This statute provides that anyone who:

> "willfully and unlawfully; conceals, removes, mutilates, obliterates or destroys; or attempts to conceal, remove, mutilate, obliterate or destroy; or carries away with intent to conceal, remove, mutilate, obliterate or destroy; any record, proceeding, map, book, paper, document or other thing deposited in any public office may be punished by imprisonment for three years, a $2,000 fine, or both."

The heads of federal agencies are responsible for preventing the unlawful or accidental removal, defacing, alteration, or destruction of records. They must also implement and disseminate policies and procedures to ensure that records are protected and report any incidents to the National Archives and Records Administration (NARA).

Immunity and the separation of powers

The US Supreme Court's decision in Trump v United States has been described as granting the president "immunity from prosecution for 'official acts' taken while in office". The ruling has been criticised for creating a "law-free zone around the president", upsetting the status quo since the Founding.

The decision grants the president absolute immunity from prosecution for "official acts" carried out as part of an "exclusive" or "core" power. This includes appointing judges, issuing pardons, and communicating with executive branch officials about investigations and prosecutions.

For "official acts" carried out as part of a "concurrent" power with Congress, the president has "presumptive immunity". This means criminal liability can be applied if it does not intrude on the authority and functions of the executive branch.

The ruling has been criticised for its failure to define what constitutes an "official act", leaving this determination to lower courts. This lack of clarity has been described as creating a fuzzy legal space, with judges left to decide what is "presumptively" immune and what evidence can be allowed to prosecutors to challenge that presumption.

The decision also highlights the limitations of the current conservative Supreme Court majority's approach to separation of powers conflicts, specifically its reliance on separation of powers formalism. This method of constitutional interpretation uses rules derived from the original meaning of the Constitution to resolve disputes between Congress and the president.

However, this approach struggles to deal with issues that arise in areas of overlapping authority between the branches. In Trump v United States, the Court failed to provide a clear method for identifying areas of exclusive powers, leading to criticism that the decision was fundamentally arbitrary and failing to provide reasoned grounds for future cases.

The ruling in Trump v United States has significant implications for the separation of powers and the potential for a president to act without regard for legal consequences. It remains to be seen how this decision will be applied and interpreted in future cases, but it has undoubtedly shifted the balance of powers between the branches.

Immunity and the relevance of illegality

The US Supreme Court's ruling in Trump v United States established that the president has immunity from prosecution for "official acts" committed while in office. This ruling has been criticised for granting the president nearly limitless power, creating a law-free zone around the president, and upsetting the status quo that has existed since the country's founding.

The decision grants absolute immunity for a subset of "core" presidential functions, such as appointing judges or issuing pardons, and presumptive immunity for acts taken in the "periphery" of the president's powers, such as directions made to staff or announcements made through official channels.

The court's ruling makes the presumption of immunity exceedingly difficult to overcome, requiring the government to establish that there is "no danger of intrusion on the authority and functions of the Executive Branch". This has been criticised as a distortion of legal precedent, with the court's new test lacking the balancing of factors present in previous immunity cases.

The relevance of illegality comes into question when determining whether presidential conduct is "official" or "unofficial". The court has ruled that illegality cannot be considered when making this determination, even in cases where the president is acting in an official capacity pursuant to a statutory grant of authority. This has been criticised as nonsensical, as it creates a situation where the president is both acting in an official capacity and illegally under a statute.

The court's ruling also precludes the use of evidence of official acts in a criminal case against the president, even for private conduct. This further limits the ability to prosecute a president for criminal acts committed while in office.

The implications of this ruling are far-reaching and have the potential to significantly impact the balance of powers between the branches of government. It remains to be seen how this decision will be applied in practice and whether there will be any efforts to challenge or overturn it.

Frequently asked questions