The threat of a future criminal presidency has greatly expanded
The Supreme Court created more than criminal immunity; it created a sacred zone of protection from criminal oversight for core presidential powers in the Constitution
I’ll be honest — although the news cycle has shifted since Trump v. U.S. came down (and shifted vastly, especially with Joe Biden’s announcement that he is stepping aside as the Democratic nominee for president), I find myself still ruminating about the decision in the Trump criminal immunity case. Its potentially dire implications for democracy, the rule of law, and the rights of individual citizens cannot be overstated.
My thesis is that the only thing standing in the way of a criminal enterprise operating out of the White House is personal integrity. Which means November 5 matters more than ever. As will the November election of presidents for the rest of American history, unless we slip into a dictatorship in the interim, or the Supreme Court’s right-wing configuration changes.
To test my thesis, I wrote out a thought experiment for The Hill. This law school hypothetical led to the ineluctable conclusion that personal virtue is the only meaningful guardrail standing in the way between government by We the People and something else very dark: a criminal enterprise in the Oval Office that would be difficult, if not impossible, to stop once it starts.
Given President Biden’s decision to drop out of the Presidential race, there is now a real chance that, despite repeated blows and threats to the structure of American democracy, it might hold out for now. Until then, we must remain educated and hopeful.
But also realistic and vigilant.
If you are skeptical of my thesis, that’s certainly to be expected—nobody wants to think that what I lay out is conceivably possible in America. So, if you read it and disagree with any part of my analysis, please let me know in the comments. I have four daughters, and the scenario frightens me. I want to be wrong.
Here is the hypo:
Imagine a president pulls a handgun out from his personal belongings and shoots a person he dislikes for personal reasons. Under the ruling in Trump v. United States, this is an unofficial act that would likely lead to the president's prosecution once he leaves office.
Now imagine the same vengeful killing, motivated by pure personal hostility, with no bearing on the broader interests of the American public. But instead of reaching for his handgun, he orders a law enforcement officer to commit the murder using an official federal firearm. Under the majority’s reasoning, the Constitution now forbids any legal consequences attaching to the president for having directed the same murder — even once he leaves office.
The officer has a choice: do the criminal bidding of the president and potentially lose her job, or refuse, lose her job, and face the wrath of a criminally-minded president.
This is where the pardon power—the subject of my new book, out in September—turns the immunity decision into a shotgun in the Oval Office's closet.
Under the language of the majority’s opinion, such a president could promise the law enforcement officer a pardon and even perhaps a monetary bribe to persuade her to murder his rival under the protection of official presidential power.
Now, I am sure you are wondering whether this could actually work. Under the Constitution's foundational structure, the answer should be a resounding “no.” But Chief Justice John Roberts’ majority opinion makes it possible that one day, the answer could be “yes.”
I write this Substack as a contribution to civic education. Keeping it going depends 100% on reader support. As we sit on the knife’s edge of democracy, please consider upgrading to paid if you want to help in this important effort—and thank you!
In the majority opinion, Roberts wrote that it is an official presidential power to grant “reprieves and pardons for offenses against the United States.” And such power, he said, has “unrivaled gravity and breadth.”
Can I get a quick refresher on the pardon power?
I return to the pardon hypo below. But for now, here is a quick recap of the pardon power. (For a deep dive, pre-order my new book, Pardon Power: How the Pardon System Works—and Why, to get a closer look at its significance and why it is still around. It’s available on September 2nd.)
The President’s pardon power comes from Article II, Section II of the United States Constitution. It grants the president the power to pardon (i.e., set aside) federal crimes but not impeachment convictions.
It originates from Medieval England, where kings ruled with absolute power and absolved defendants of their convictions where they saw fit. The idea was that the monarch needed a tool to correct injustices and foster social unity. Mercy and amnesty are the two legitimate grounds for pardons, even today. Corruption and self-interest are not.
Enter the U.S. Constitution . . .
Keep reading with a 7-day free trial
Subscribe to Simple Politics with Kim Wehle to keep reading this post and get 7 days of free access to the full post archives.