Of course Trump isn’t immune from prosecution

Last week’s Supreme Court argument in Trump v. United States on the question of presidential immunity left us wondering whether people, including some of the justices, have forgotten why we have law in the first place.

The question before the court was narrow: If Special Counsel Jack Smith can show that President Donald Trump knowingly tried to subvert the results of a free and fair election, is Smith barred from seeking a criminal conviction because of some implicit principle not apparent in the Constitution? Put more simply, does it make sense for any country to immunize a defeated leader from accountability for using his power of office to reject the will of the people?

When posed this way, the question answers itself.

Instead, several of the justices focused on a parade of hypotheticals that allowed them to avoid the actual case before them. The justices expressed concern about the potential threat to presidential power. They worried about future presidents looking over their shoulders, cowed by potential criminal liability. Could a president be charged with murder for ordering a bombing without waiting for better evidence on who might be killed? Could an overzealous prosecutor transform a routine presidential action into a crime by alleging a corrupt presidential motive?

Perhaps these are hard questions. But the Supreme Court wasn’t facing any of them.

The president’s job is to take care that the laws be faithfully executed. The fundamental idea of a constitutional democracy is that we are a government of laws and not of men. This means, as Justice Robert Jackson said in the Steel Seizure Case, that governmental authority reaches only so far as there is law. An executive officer, as Chief Justice Marshall explained in Marbury v. Madison, “is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others” — let alone the rights of a majority of American voters.

There is a simple reply to the justices’ concern about chilling future presidents: The principle that no person is above the law strikes exactly the right balance. In a democracy, the people rule through their elected representatives and speak through the laws they make. No person is above the law because no person has a higher authority than the people themselves.

We should cherish this system. If it incentivizes presidents not to commit crimes, it means our system is working. Perhaps that’s why history lacks a single example of a president being prosecuted for a crime. Perhaps that is why the last president who claimed to be above the law was driven from office and had to be pardoned by President Gerald Ford.

The speculative flurry of hypotheticals left the court desperate for some sort of legal test that would protect presidents from prosecution in gray areas where a good-faith execution of the powers of the office might later be seen as criminal. The most tempting was the idea that presidents should be immune for anything they do in their official capacity. But as Chief Justice John Roberts himself pointed out, this would immunize core examples of official misconduct such as bribery. Taking a bribe to grant a pardon, veto a bill or appoint an ambassador is the very form of corruption that the rule of law protects us from. The idea that there should be total immunity for official acts would mean, as Trump’s lawyer repeatedly claimed, that a president could order the armed forces to assassinate a political rival without criminal liability.

Other categorical approaches are no better. Justice Brett Kavanaugh suggested that core aspects of the presidency cannot be regulated by Congress. This sounds good until you consider what it would mean. Can the president as commander in chief threaten to send a rival’s child into battle unless that rival withdraws from the race? Can the president condition a pardon, a veto or a cabinet appointment on the payment of a bribe? For all the court’s concern about future cases, it did a poor job of examining the implications of its off-the-cuff suppositions.

A basic premise of our legal system is that judges can only decide concrete cases. When judges devise legal tests in the abstract, they are likely to miss the difficulties and nuance that actual cases provide. The point of testing a proposed rule against hypotheticals is to make sure that it is a sound one. Any legal test that tells future presidents that they can use their office to block certification of a free and fair election because they don’t like the result must be wrong.

Laws attach consequences to behavior that affronts basic norms, including the basic norms of our democracy. The jury system means that citizens decide if those laws have been broken. Former President Trump is presumed innocent until he is proven guilty. But nothing in our Constitution could plausibly block the special counsel from offering such proof before a jury of Trump’s peers.

Jeremy Paul is professor of law at Northeastern University School of Law. Steven L. Winter is Walter S. Gibbs Distinguished Professor of Constitutional Law at Wayne State University Law School.