This is interesting. Over the last several weeks I’ve read a number of articles in which the writer asserted rather blandly that a president was immune from criminal prosecution. There is usually no caveat, even to the extent of noting that perhaps a president could be prosecuted once he or she had left office. One would never know that no court has ever ruled on the issue. The linked article notes that not only did the execrable Kenneth Starr reach a different conclusion, but the far more honorable Leon Jaworski did as well.
I think it is fair to say that if a president cannot be indicted, neither can he or she be simply arrested and charged with a crime, since the two acts are functionally equivalent.
So, lets do a little imagining. Imagine you had a president who was a bit mentally ill. This president happens to be of a member of a party that controls both houses of Congress, and that party happens to be in the hands of corrupt party hacks who feel this mentally ill president is a useful idiot that is convenient for them to achieve their political objectives, which for the sake of argument we will say are, generally speaking, enacting laws that transfer the nation’s wealth from the mass of people to the rich. Let us imagine that nothing this president could do would impel this corrupt political party to consider impeachment or the invocation of the 25th Amendment.
Now let us imagine that this president takes it into his head to go to 5th Avenue and shoot and kill random people on the street. Now, he would no doubt expect his base to continue to love him, and they no doubt would, as would the folks at Fox and Friends, but the rest of us, not to mention the family and friends of the victims, might feel differently. According to the “president is immune from prosecution” theory, this imaginary president could continue to kill random people throughout his term, with the sole remedy being the possibility that he could be brought to justice after the end of his term.
Let us assume further that after an imaginary president is inaugurated, evidence surfaces that he or she committed a string of illegal acts prior to that inauguration, including illegal acts in furtherance of a conspiracy by and with a foreign government to tamper with the electoral process. According to the “president is immune from prosecution” theory, that president became immune from prosecution the minute he or she took an oath swearing to defend the constitution he or she had so recently attempted to destroy.
There are plenty of legal concepts available to the courts to protect the president’s legitimate interest in being able to carry out his or her duties without improper interference from the courts. I don’t think there’d be any argument against the position that the president should be immune from criminal prosecution for action taken within the scope of his or her duties. If, for instance, he ordered a military attack on a civilian population, he couldn’t be brought up before a US court on charges of war crimes, though he could be impeached for the same act if Congress saw fit. On the other hand, if he or she chose not to pay income taxes duly owed to the federal government, there is no earthly reason why he or she should not face the same court system to which the rest of us would be consigned if we committed the same offense. A president’s obligation to pay taxes is simply outside the scope of his or her official duties.
In the present case, Trump’s crimes all predate the day of his inauguration, though the coverup has continued. He can argue that colluding with a foreign government and then covering it up comes within the scope of his duties, but that would be a stretch that even the present Supreme Court might not be willing to make, and even if they were willing to go there for acts taken prior to the inauguration, his pre-inauguration acts cannot be retroactively assigned to his presidential duties.
Given the present Supreme Court, it is entirely possible that we might get a blanket immunity ruling, limited, of course, as was Bush v Gore, to the present circumstances so that a future Democratic president could still face criminal prosecution, but I doubt the court would go there, since they have the equally useful idiot Pence waiting in the wings.
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