Electing a virtuous president would make immunity irrelevant, writes a political philosopher

By Michael Blake, University of Washington

The Supreme Court’s decision that grants presidents immunity from criminal prosecution for their “official acts” has been met by alarm by many legal scholars. Constitutional lawyer Michael Waldman referred to the decision as an “instruction manual for lawbreaking presidents,” while law professor Michael Dorf noted that the ruling would seemingly allow a president to openly sell pardons for bribes.

As a political philosopher whose work focuses on how political institutions are preserved, I am concerned about these implications of the court’s decision. I am, however, also worried about what the effects would be of the absence of such immunity.

Complexities of presidential prosecutions

The Supreme Court declared over 40 years ago that presidents are immune from civil liability for official acts. In the 1982 case Nixon v. Fitzgerald, the court determined that presidents cannot be sued for their official acts. The judges noted that allowing such lawsuits would “distract a president from his official duties,” to the detriment of the American polity itself.

These concerns seem to apply as easily to criminal prosecution as to civil liability. If responding to a lawsuit would make it more difficult for presidents to perform their job, so too could a criminal indictment.

In the present deeply partisan political world, such concerns become even more important. Whether or not one approves of the actions of Donald Trump, it is worth noting that what is done to one president could be done to others. Indictments might sometimes reflect partisan politics; they may, more often, be interpreted as politically motivated, thereby inflaming such partisanship.

These worries are demonstrated in some recent international examples. Many countries have recently prosecuted former leaders for acts undertaken in office. These include France, which recently convicted former President Nicolas Sarkozy for violations of campaign finance rules; and Israel, which has indicted current President Benjamin Netanyahu on corruption charges.

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