How might a rogue president use the US supreme court immunity ruling?
“I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK … It’s, like, incredible.”The ruling of the US supreme court in Trump v United States last week establishes that the president has immunity from prosecution for “official acts” taken while in office. The term “official acts” was not defined in the case, leaving it for lower courts and establishing a precedent that the president broadly cannot be held accountable for breaking the law except under narrow conditions, or by impeachment, which itself only removes him from office without further consequence.“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the Founding,” Justice Sonia Sotomayor wrote in a scathing dissent. This new official-acts immunity now “lies about like a loaded weapon for any president that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the nation”.The decision seems to grant nearly limitless power to the office. Any act a president takes in the “core” functions of the job, such as appointing judges or issuing pardons, have absolute immunity. Any act taken in the “periphery” of his powers, like directions made to his staff or announcements made through official channels to the public, are presumed to be immune from prosecution, barring the finding of a judge otherwise. Acts taken outside of his official duties are not immune, though again: a judge makes that determination using ill-defined terms.It is roughly equivalent to the “enabling acts” of Nazi Germany. Coupled with the power of pardon – which allows the president to immunize anyone he or she chooses from federal prosecution without review or challenge from the other branches of government – the president can instruct subordinates of his or her choosing to act without regard for legal consequences.The idea that the president might declare a political opponent an enemy of the state and have a military sniper kill that person was raised as a hypothetical during oral arguments, and the resulting decision, incredibly, does not categorically rule that act a prosecutable abuse of power.Instead, we’re left in a fuzzy legal space, with judges left to decide what is “presumptively” immune and what evidence can be allowed to prosecutors after the fact to challenge that presumption.What might have once been an academic or intellectual exercise, the stuff of Tom Clancy novels or Aaron Sorkin scripts, is rapidly resolving into focus as a meaningful real-world problem. As I hear people discussing the ruling – and random people are discussing it everywhere I go – that’s the first thing they reach for. But the implications of the ruling and its effect on executive power are farther reaching than this.In some ways we have always been in a fuzzy legal space with regard to executive power. The assassination of a US citizen ordered by the president is not without precedent. Consider that Barack Obama ordered drone strikes on Anwar al-Awlaki, Samir Khan, and 16-year-old Abdulrahman al-Awlaki in Yemen in 2010. The then president did not face prosecution for this action.The question Trump v United States raises is whether he could have before now.How might a rogue president without political or moral constraint use the office for private gain, the punishment of political enemies, or to subvert the interest of justice and the public good?Start by looking at how executive power is exercised.The president has a set of delineated powers. Some require him to act in concert with others – the president signs treaties, but they must be ratified by the Senate. The president cannot draft a law unilaterally. Judicial appointments, ambassadorial appointments and appointments of cabinet members must be approved by the Senate.But much of executive authority is unilateral. The president can represent the US to foreign countries without constraint. The president commands the military, directs the activities of the CIA and FBI, directs the actions of executive branch employees, classifies or declassifies intelligence, and critically grants pardons without review.Consider each branch of executive authority, by department, and how a malevolent president might subvert the law.Department of StateThe constitution’s emoluments clause requires the president to refrain from accepting any gift, payment, or anything of value from a foreign state or its rulers. The state department maintains a protocol gift unit that makes sure the president or other federal employees don’t pocket anything from a foreign government worth more than a nominal amount, currently set at $480.Trump v United States establishes that the president cannot be prosecuted for this crime, even though it is black letter constitutional law. Receiving a gift from a head of state as president is almost certainly an “official act”, and if the president decides to steal that gift and deposit it in a bank account, or accepts the deed to a golf course in Dubai or a yacht that never makes port in the United States, there’s nothing that can be done about it, except to see if a federal prosecutor can introduce sufficient evidence to overcome the presumption of immunity after the fact.The ruling opens up potential for a foreign government to bribe their way out of state sanctions, an embargo or diplomatic trouble from, say, murdering a journalist working for a US newspaper.Department of the TreasuryThere are many levers here that a corrupt president can pull, but I’d like to focus on impoundment; the act of withholding money allocated by Congress for a specific function. It was an act of impoundment that led to Trump’s first impeachment and an issue that Steve Bannon repeatedly returns to when discussing executive power. Congress made impoundment a crime in 1974 after the abuses of Richard Nixon. The supreme court’s ruling affirms that the only remedy to this “high crime” is impeachment.Consider what would happen if the treasury department impounded funds directed toward any other government agency that wasn’t being cooperative. Medicare and Medicaid. HUD. The EPA. A compliant Treasury official could simply stop sending the Department of Education funding, which would prevent the issuance of new federally-backed student loans for college.There are other broader avenues for misconduct, however. Consider what would happen if the president instructed the secretary of the treasury to unilaterally withhold payment on bonds issued by the US government to specific creditors, all questions about the full faith and credit clause be damned. Consider how the IRS might target political opponents, a touchstone for conservative critics of the federal government and the investigation of church abuse of exempt tax status.Even the implied threat of regulation of financial instruments like cryptocurrencies can create changes in the market. A self-interested president who had not placed his or her personal investments in a blind trust could engage in wide market manipulation to his or herown benefit through regulatory action taken by treasury officials.And then there’s treasury’s role as the overseer of financial sanctions on entities like Russian oligarchs, Israeli settlers, Chinese government agents and international terror groups. A pliant or compromised president could redirect resources away from enforcement.Again, the legal question becomes one of presumptive immunity, as these areas are in the “periphery” of the president’s authority. Note that justices ruled that official acts cannot be used in evidence to support the prosecution of a crime committed in the president’s personal capacity, a complication which renders the practical prosecution of crimes of fraud, the use of public office for private gain or market manipulation difficult.Department of DefenseMilitary officers in the United States have maintained the armed services as an objectively apolitical institution stretching back to America’s founding. Its general officers have resisted attempts to change that. The approach of Project 2025 is to reduce the number of general officers because it is easier to find people who will place their loyalty – and their career prospects – inTrump’s hands.The military has about 1,000 men and women serving in the ranks of generals and admirals. Approximately 40,000 people serve at the rank of 0-5 or higher – that is a lieutenant colonel in the US army, air force, marines or space force, or a commander in the navy. Promotion of an officer to this rank requires approval by the Senate.But the president can fire an officer more or less at will. This is certainly true for removing general officers from command “in a time of war”. The statute does not define what a time of war means; it does not contain language requiring congress to declare war.A president intent on launching military action that is illegal or immoral – calling a Seal Team 6 operator to kill an American overseas, or perhaps someone within the United States – today can be expected to face a refusal to obey an unlawful order and a report to Congress. But a malevolent president can simply fire any officer who refuses the order, working through the ranks until he finds one willing to obey an illegal order, offering a presidential pardon that would immunize whoever obeys the order from the consequences of a court martial.This logic extends to orders for the military to violate posse comitatus – the mobilization of military force domestically, a violation of federal law. It could also extend to the use of nuclear arms, with a president serially firing officers who refuse to arm and launch a nuclear weapon.The president’s management of the military is a “core” function of the president; it is described in article II of the US constitution. Thus, the president likely enjoys absolute immunity from prosecution here.The functions of military intelligence, the CIA and the Department of Justice are separated by a wall of laws meant to protect US citizens from the government’s vast capacity for foreign military surveillance. After discovering abuses within the intelligence community in the Nixon era, Congress established a foreign intelligence surveillance court to review the work of the CIA and ensure that spies were not illegally surveilling US citizens.A president unconcerned with the law could simply walk intelligence gathered from one agency to another, with orders to act on it.Department of JusticeMuch of the constraint on abuses by the attorney general’s office are a matter of custom, not law. A set of internal policy guidelines governs the conduct of US attorneys. Surprisingly, the supreme court decision last month overturning the Chevron doctrine or the principle of legal deference to agency rule-making, may have done as much harm as Trump v United States in this regard. Justice department rules constraining federal investigators from targeting people for their politics – or targeting politicians who aren’t voting the right way – can be challenged on this basis by a politically-motivated appointee. More
