By Tony Bruce | Monday, September 9, 2024 | 4 min read
The Supreme Court’s ruling on presidential immunity is flawed, and president Joe Biden has called for a constitutional amendment to overturn it. However, if Kamala Harris becomes president, could MAGA push the Supreme Court to revoke presidential immunity altogether?
The concept of implied presidential immunity has long posed challenges in American constitutional law. Richard Nixon’s post-presidency remark to David Frost—”When the president does it, that means it is not illegal”—initially shocked many. Yet, in the specific context he was referring to, Nixon was technically correct. This was not due to any inherent monarchical power in the presidency but because Congress’s power to regulate certain presidential actions is limited. When Congress cannot regulate a presidential power, it also cannot criminalize actions taken under that power. This understanding forms the core of presidential immunity: the inherent constraints on Congress’s ability to regulate the president.
The Supreme Court has now broadened that buffer in cases involving alleged presidential crimes. While the Court made it clear that there is no immunity for unofficial acts or actions that fall outside the “outer perimeter of official responsibility,” a complication arises when unofficial acts are carried out through official channels and involve core constitutional powers. In such instances, the president cannot be held accountable for exercising core presidential authority, and evidence from those official acts cannot be demanded in prosecuting the crime.
In Trump v. United States, the Supreme Court ruled that because the threat to remove an attorney general involves the exercise of core presidential power, any evidence of threats made to remove the attorney general for not helping Trump overturn the election results cannot be used in prosecuting actions taken to pursue that unofficial objective. This principle would also extend to more extreme cases: if a president, during wartime, ordered a general to assassinate a political rival, that order would be immune from prosecution, as it involves core presidential authority—even though the intent was private and not constitutionally protected.
This represents an extreme form of immunity. However, no president is obligated to accept it. A president or presidential candidate could publicly commit to waiving immunity for any actions taken to advance unofficial objectives, even if those actions involved core presidential authority. Introducing such a waiver could become a standard practice in presidential campaigns. Kamala Harris could set that precedent as soon as tomorrow.
Presidents have the freedom to make this pledge because the broad immunity granted by the Court is not constitutionally mandated. It is a practical judgment made by six justices who believe that such a buffer is necessary for presidents to act with “vigor.” However, a president or candidate could make a different judgment, choosing to reject this extra protection. A candidate could say, “Thank you, but I waive any immunity from prosecution for criminal acts done to advance unofficial ends, including immunity for official acts that promote private crime.” As long as Congress has the power to regulate those acts, such a waiver would mean the president is not above the law.
Not every candidate would make this pledge, and the public would have every reason to question why. It’s one thing to argue, correctly, that a president needs the freedom to act energetically within the “outer perimeter of official responsibilities.” But it’s entirely different to claim that the presidency requires the ability to use official authority to commit private crimes. The Supreme Court’s decision currently leaves the president presumptively immune from prosecution in such cases—unless a president voluntarily waives that immunity.
If multiple presidents and candidates began making this pledge, it could build momentum for a more permanent fix to Trump v. United States through an act of Congress. The Court acknowledged in Nixon v. Fitzgerald that Congress has the power, within limits, to modify the immunity it has extended to the president. Presidents themselves can also modify that immunity, at least as it applies to them personally.
However, if Kamala Harris were to become president, MAGA could leverage this shift in power to push the Supreme Court to reconsider presidential immunity altogether. Given the polarized political climate, MAGA forces might argue that such broad immunity should not apply to a Democratic president, and they could lobby for the Court to revoke or significantly narrow the scope of presidential immunity. This could spark a legal and political battle over whether immunity should remain as expansive as it currently is or be stripped away, depending on which party holds the presidency.
No one, not even the president, should be above the law. Congress should enshrine this principle for all presidents. But a presidential candidate—such as Kamala Harris—could make it a reality for themselves right now.
