Presidential Immunity

Someone posted this video on Instagram of John Stewart commenting on Presidential Immunity. With typical American arrogance and ignorance, he insulted the millions of people whose system of government includes a constitutional monarch/king. But that is a side issue.

Presidential immunity is too important an issue for joking. The United States has always offered “implicit presidential immunity” to its leaders so that they have freedom to act boldly in the exercise of the duties of their office.

From my reading of history, almost all US presidents have committed crimes, and none have ever been prosecuted (except possibly one). For example, I am currently reading a history of the CIA. It tells a shocking story of presidential behaviour. President Eisenhower, assumed to be one of the best, ordered the CIA to bomb the military forces of Indonesia in an attempt to overthrow its democratically elected president. John Kennedy asked the CIA to eliminate the president of Vietnam. Robert Kennedy, who was allowed to stand for the presidency, had ordered the CIA to assassinate Fidel Castro. None of these actions were authorised by Congress. None of these crimes were prosecuted.

In the current situation, there is a strong case for the Supreme Court to re-define the scope of presidential immunity, which currently seems to work as follows.

• Crimes committed before the person becomes president don’t matter if the electors know about them, and voted for him/her anyway.

• Crimes committed during the presidential term are not prosecuted if they are done in the pursuit of American interests.

• Crimes committed during the presidential term that are done in the personal interest of the president are generally not prosecuted because this would damage the prestige of the presidency. The investigations into President Nixon weakened the presidency, so he was pardoned. President Kennedy’s adultery was tolerated, even though it created a security risk, because Americans like their president to be virile. President Clinton was impeached, not prosecuted for his crimes.

• Crimes committed after the presidential term are not prosecuted unless they are really serious because that would undermine the reputation of the presidency. A serious crime like murder would be prosecuted, but theft or fraud might be tolerated because most Americans want a president who is sharp at doing business. Consequently, most ex-presidents get rich, often by means that are marginally legal.

The standard remedy for presidential crimes is to vote them out at the next election. If the problem is more urgent, then the remedy is impeachment. It is a better process for investigating and dealing with a presidential crime.

The Supreme Court will need to be careful about tightening the scope of presidential immunity because it will fear weakening the presidency, at a time when its status is already fragile.

The real problem is that the US election process has thrown up two ugly, fairly incompetent, old men for the next presidential election. Both have been involved in embarrassingly dodgy dealings. The reality that one of these two uninspiring leaders will be elected is hardly a sign of a great nation.

The solution to this very serious problem is not getting politically-appointed district attorneys or special prosecutors to twist the law and charge one of them before judges with strong political loyalties to hamper his election campaign. Nor is attempting to impeach the other. These solutions will both undermine democracy and trust in the law. The only genuine solution is to trust the voters. The fact that political leaders are stooping to these underhand solutions confirms that they don’t trust the voters, but what does that say for the state of their democracy?