Protecting Presidents from Special Prosecutors
For keeping the Republic, no constitutional question decided by the Supreme Court this term rivals the importance of Trump v. United States. Deciding that ex-presidents cannot be prosecuted for official acts constructs a sturdy constitutional bulwark against what Chief Justice John Roberts, quoting George Washington, calls the ‘frightful despotism’ of ‘alternate domination of one faction over another, sharpened by the spirit of revenge.’” The nation’s first president’s words are prescient. Today, factions seeking retribution for past harms use independent prosecutors, with ample resources but beholden to hardly anyone, as instruments for launching investigations, prosecutions, convictions, and imprisonment of those they hate. The attempted assassination of Donald Trump graphically illustrates how easily elite efforts at retribution can translate into acts of violence by those on the social fringe. Roberts’ sweeping opinion gives hope that contemporary passions for vengeance will be curtailed or at least restrained.
An uncontrolled president who pretends to be above the law poses a greater danger to the Republic, says Justice Sonia Sotomayor, in her dissenting opinion. Robert’s “single-minded fixation on the President’s need for boldness and dispatch ignores the countervailing need for accountability and restraint,” she continues. Quoting Alexander Hamilton, she argues that the safety of the Republic requires that presidents be vulnerable to “prosecution in the common course of law.” Otherwise, “any President that wishes to place his own interests, his own political survival, or his own financial gain, above the interests of the Nation” may do as he pleases.
Sotomayor’s fears are not foolish. Tyrants arise out of mobocracies. However, the Republic has powerful institutions and practices—Congress, courts, states, the media, civil society—capable of resisting a president bent on tyranny. Trump is alleged to have undermined democracy by challenging the 2020 election and doing little to forestall an advance of his supporters on the capitol. Trump’s action and inactions were inexcusable, but resistance to them was overwhelming. Trump lost the election. Now it is claimed that a better prepared poses an even greater threat. Yet his opponents will be even more ready to denounce any hint of a violation of the constitutional order.
In contemporary politics, it is not executive tyranny but the “alternate domination of one faction over another, sharpened by the spirit of revenge’” that poses the greatest threat to the Republic. Revenge piled on retribution, over and over, eventually leads to political violence, as George Washington realized in his farewell speech and the whole nation discovered when civil war broke out in 1861.
In recent times, political factions turn to special prosecutors to seek reprisals against enemies. Initially, special prosecutors uncovered dirt used to justify presidential impeachment; today, only imprisonment will do. Fortunately, the latest Court decision, by declaring that presidents cannot be prosecuted for official actions, limits the scope of investigations, safeguarding the Republic from a perpetual whirl of criminal prosecutions with every change in political power.
Biden benefits from the Court’s decision. The night before the decision in Trump was announced, candidate Trump, in the CNN presidential debate, said Biden “could be a convicted felon as soon as he gets out of office. Joe could be a convicted felon with all of the things that he’s done…. All of the death caused at the border.” Those words might be seen as mere campaign rhetoric—or as a promise to appoint a special prosecutor. After all, House Republicans had just impeached Biden’s Secretary for Homeland Security on this very issue. The Supreme Court has now made clear that no such prosecution can go forward.
Nor can Trump drag Joe Biden into court over his son’s allegedly corrupt dealings in the Ukraine. In the debate, Trump said Biden had committed a crime when he supposedly told Ukranians that “you [must]change the prosecutor [of a company in which Hunter Biden is said to have an interest]; otherwise, you’re not getting a billion dollars.” Even if the allegations could be proven (a Big If), Biden, no matter what his motives, was at time the vice-president, engaged in official actions for which, under the Roberts’ doctrine, he cannot be prosecuted.
The Chief Justice distinguishes the current merry-go-round of revenge and retribution from the real-life, genuine, serious abuse of executive power that occurred when burglars entered Democratic offices at the Watergate. The actions of the Nixon Administration were clearly unofficial, well beyond the “outer perimeter” of a president’s constitutional and legal responsibilities. Roberts, by distinguishing between official and unofficial actions, makes it clear any similar incident in the future is subject to prosecution.
In Watergate’s aftermath, the Ethics in Government Act gave the Department of Justice the power to ask a three-judge panel to appoint an independent special prosecutor. The law soon twice became a tool for political revenge. In both cases, presidents were threatened with crimes that could lead to impeachment and imprisonment, though neither was worth a criminal investigation. The Iran-contra deal made by the Reagan Administration unduly stretched the power of the executive, and Clinton’s dealings in Arkansas and his sexual affair with a young staff assistant were tawdry, but in both case the prolonged investigations became as stinky as the activities they uncovered. Afterwards, Congress let the Ethics in Government law expire, and the era of political recrimination seemed to have come to an end.
Unfortunately, the practice has now been revived, though its constitutional legitimacy is problematic, as Justice Clarence Thomas argues in his concurring opinion in the Trump decision. Four months into the Trump Administration, the Justice Department, pressured by congressional Democrats, asked Robert Mueller to investigate alleged co-ordination between Trump’s campaign and Russian spies. Impeachment expectations ran high, but no conspiracy was identified.
The incident passed, but it created a precedent for three special counsel investigations launched by the Biden Administration: 1) Trump’s removal of official paper’s to Mar-a-Lago, 2) Trump interference with the 2020 election outcome; and 3) Biden’s removal of official papers to his garage in Delaware.
Two of them border on the nonsensical. Presidential taking of official papers dates to the earliest years of the Republic, and presidential libraries are filled with official documents. The district court judge, citing the Thomas concurring opinion, found sufficient grounds to throw the case out of court. Appeals are expected but the case is likely to wander into nowhere once election day passes.
The investigation of Trump’s role in the January 6th protest has more justification. But as Roberts made clear, the prosecution wandered far beyond its proper scope.
In just fifty years, political factions have escalated the use of special prosecutor investigations from filing impeachment motions to filing of charges of criminality in federal courts. Reprisal and retribution seems to have been institutionalized. By adhering to constitutional principles, in this case the separation of powers in a federal system, the Roberts sweeping opinion safeguards the Republic just in time.
Paul E. Peterson is a Senior Fellow at the Hoover Institution, Stanford University and a professor of government at Harvard University.