“Alexander Hamilton participated in drafting the Constitution. In 1788 and before ratification, he and James Madison wrote a series of essays in the Federalist, articles designed to explain the workings of the new government and to quell critics’ fears about its various provisions. One major objection was that the president of the new nation would resemble the king of Great Britain in his unfettered powers. Not so, wrote Hamilton. Unlike a hereditary monarch, the president would serve a term of only four years, after which he would have to stand for reelection or rejection. More to the point, he elaborated on the generic judgment impeachment clause as it would apply to the president himself.
Hamilton wrote: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery or other high crimes and misdemeanors, removed from office, and would afterward be liable to prosecution and punishment in the ordinary course of law. The person of the King of Great Britain [by comparison] is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subject without involving the crisis of a national revolution.”
We learned from Watergate that Nixon’s coverup was as serious as the crimes he was attempting to conceal. Now, the court has given the president the constitutional tools to accomplish the equivalent of a successful coverup in plain sight: a safe harbor against justice. The court’s decision will embolden the president because he will no longer have anything to fear from the law. The court’s holding that the president has “unreviewable and absolute discretion” over prosecutorial decisions means that if Donald Trump is reelected president, he can and most likely will dismiss all federal charges against himself. One seriously doubts that such a corrupt and egotistical act is what the framers had in mind when they called for an “energetic independent Executive.”
Will the public on whose support our institutions depend accept one set of rules for the president and his agents but another for themselves — a constitutional double standard?
As the dissenting justices acknowledged, it is one thing — and entirely appropriate — to protect a president from criminal prosecution for the good-faith exercise of his or her legitimate power, even when the president is mistaken. The same considerations do not apply, however, when the evidence shows that the president intentionally violated clearly established criminal law, not in good faith, not to serve the nation, but to benefit himself.”
By By Stephen S. Trott
Washington Post, Why the Supreme Court’s immunity ruling is untenable in a democracy -October 7, 2024 at 6:00 a.m. EDT
Stephen S. Trott is a senior judge on the U.S. Court of Appeals for the 9th Circuit. He was appointed to the federal bench by Ronald Reagan.