The whole idea behind (sovereign) immunity is that concerns about prosecution or damage lawsuits for actions in office might adversely impact decision-making/performance in office. In part, this has its roots in English common law.
Let's start with some contextual distinctions: there is qualified vs absolute immunity from civil lawsuits or criminal prosecution for actions exercising discretionary public responsibilities in good faith. Note that "qualified" excludes incompetence or manifest violations of statutory or constitutional authority. Qualified immunity generally refers to civil suits against operational public servants like police officers.
The idea behind the qualified immunity doctrine was that officials need to be able to make reasonable mistakes without fear of being driven to financial ruin from lawsuits. That’s considered especially crucial in circumstances requiring quick action, such as when a police officer chases a suspect, says Mark Chutkow, a former federal prosecutor who is now a member of law firm Dykema Gossett PLLC.
This does not imply their organizations are not themselves held responsible. We libertarians are generally opposed to qualified immunity in the interest of establishing accountability . (In my daily posts, I often include relevant videos from the Institute of Justice.) A typical example: a SWAT team team invades a home at a mistaken address and causes serious property damage.
Absolute civil immunity is generally extended to:
- lawmakers engaged in the legislative process;
- judges acting in their judicial capacity;
- government prosecutors while making charging decisions;
- executive officers while performing adjudicative functions;
- the President of the United States;
- Presidential aides who first show that the functions of their office are so sensitive as to require absolute immunity, and who then show that they were performing those functions when performing the act at issue;
- witnesses while testifying in court (although they are still subject to perjury);
- lawyers in certain circumstances related to fraud
Absolute criminal immunity has been at the center of Trump's complaints over federal criminal indictments, particularly J6. Note that civil immunity does NOT imply criminal immunity. For example, you generally cannot sue a judge mistakenly ruling against you, but if your legal adversary provably bribed said judge, he could be prosecuted. Legislators, except for 3 exceptions. are generally protected from criminal prosecution by the Speech or Debate Clause (Article I, Section 6, Clause 1) of the Constitution; the reason for it is obvious; imagine if the AG under POTUS decided to target his political opposition.
There is no comparable clause for the POTUS, and that is at the core of my objection to the SCOTUS case. Trump is facing 2 federal criminal indictments, not civil lawsuits, one broadly based on Trump's attempts to reverse election 2020 results ("Trump was charged with conspiracy to defraud the United States, witness tampering, conspiracy against the rights of citizens, and obstruction of and attempt to obstruct an official proceeding."), the other based on unauthorized theft of classified documents.
Donald Trump wants to argue that without criminal immunity he would never have done anything for fear of being prosecuted. But, in fact, POTUS is not above the law. I've pointed out in the past the Constitution explicitly points out in discussing conviction after impeachment that Constitutional sanctions of removal from office and future ineligibility for office are not the only ones, that said POTUS can be subsequently prosecuted. In fact, as I specifically tweeted and pointed out, Ford's pardon of Nixon specifically preempted future prosecution (the grand jury was ready to indict Nixon on 4 counts).
Note, however, as is clear from the recent conviction of Sen. Menendez (D-NJ) on corruption charges that legislator criminal immunity has its limits. Immunity refers to conducting relevant official (lawful) duties in office. Not everything a person does while in office is shielded from scrutiny. Like Trump, Nixon took an oath to uphold the Constitution. There is nothing in Trump's criminal charges that can remotely be considered a lawful exercise of duties as POTUS.. And really, the justices weren't reviewing the details of Trump's charges. I think that all Trump has achieved by the SCOTUS ruling is a judicial determination of whether these charges were incurred in carrying out one's official duties versus so-called private actions. Things like trying to intervene in state elections or manipulate electoral college results for Trump's personal political benefit. That was intrinsically self-serving and corrupt.
Why did SCOTUS take the case, an obvious stall tactic from Trump on being tried during the general election? Not to mention he hopes if he's reelected, he can have the charges dismissed. [Personally, I think this would be an impeachable abuse of power.] I think given the unprecedented nature of a criminally charged POTUS, SCOTUS considered it important enough to rule directly and not simply review lower court rulings.
I don't think SCOTUS really added anything new here other than establish a speed bump in prosecuting a former POTUS. But in the process they deferred Trump's day of reckoning before November's election, and I felt the American people had a right to know.
