“The Congress is in disarray, the Supreme Court is doubting justice and doomed to deadlock, and the executive branch is without a boss.”
-Francis J. Underwood
Introduction
In a landmark and politically contentious judgement, the Supreme Court of the United States (“SCOTUS”) has granted wide-ranging political immunity to the President for acts in office, laying down legal principles that may, down the line, revolutionize and perhaps jeopardize many cherished axioms of the country’s democratic ideals. It is not a final determination in any way, as many of the issues in the case that has been raised against former President Donald Trump have been remanded to the trial court for adjudication. However, the frameworks for the executive sacrosanctity of the actions of the presidential office that have been laid down by the bench are, to put it mildly, novel.
Political Turmoil and Allegations of Election Rigging
To understand this case, there is a need to discuss the political and social background in which it came to be. The various cases now pending against the erstwhile President Trump stem from his actions leading up to, during, and after the 2020 presidential elections in the United States of America, which eventually saw him lose power to the current President, Joe Biden. During the election campaigning, Trump repeatedly engaged in public speeches questioning the credibility of the electoral process and especially the system of mail-in ballots. His primary allegations were of possible fraud committed by his Democrat opponents, and even before the election was fully out, the pro-Trump factions in the Republican party were allegedly already engaged in preparations to attempt to overturn any election results in favour of Biden. Trump had also been assured of positive results by many Republican analysts and by campaigning outlooks, and so was all the more convinced about a possible fraudulent election after facing an upset when the elections did roll around. To remedy this situation, he allegedly had his lawyers, including Rudy Giuliani and John Eastman, conspire with and convince Republican officials to draft fake certificates declaring him the winner of the presidential race. This was framed as the creation of an ‘alternate electoral college’ pending proof being gathered by Trump’s team which would be used to overturn the election. The fake certificates would be sent to Vice President Mike Pence, who was pressured by Trump to count them as legitimate, or at least declare the election defective and leave the final determination to Congress. However, this plot mostly failed, as many of the targeted legislatures successfully certified Biden as the winner of the election.
Following this, Trump encouraged his supporters to protest against the newly elected presidency in Washington DC, leading to the infamous January 6 Capitol Riots as Republican supporters, prominently including members of the extremist conspiracy group QAnon, attempted to storm the seat of the US government. After these incidents, Trump was indicted and brought to trial on a variety of counts, such as pressurizing the vice president and other officials, encouraging insurrection through his speeches, and misusing the Department of Justice to push the fake electors scheme. Trump’s legal team attempted to argue presidential immunity as a defence against the charges, but the trial court did not accept the same. This eventually led the matter to the SCOTUS for constitutional determination.
While his acts have been criticised heavily by political opponents and jurists, this article argues from an administrative standpoint. For the discharge of his duties as the most powerful man in the world, these powers are a necessary evil that must be granted to the President. Further, we shall briefly touch upon the lessons India can learn from this.
At the outset, it is necessary to remove an important obstacle which may tint the lens of legal reasoning. While this judgement was delivered in light of Donald Trump’s actions, it is important to distinguish the legal consequences of this action from the persona of Donald Trump. This will help remove any political bias from the decision.
Judicial History of Presidential Immunity in the United States
The landmark 1982 case of Nixon v. Fitzgerald granted the President immunity from civil suits while in office. The rationale of the court in Nixon is similar to what has been stated here: that due to the nature of the powers of the President, he needs to be given a greater degree of immunity from lawsuits. In this case, the Court dismissed the argument of “qualified immunity” of the President (to the same extent that is granted to other executive officers), and held that the powers and functions of the President cannot be clubbed together with just any other executive. Therefore, the President is entitled to absolute immunity. The majority judgement in this opinion did not fear the President misusing this law due to the provision of impeachment always being present. In the present case, Nixon has been widely cited to justify extending the powers of the President to other spheres as well. The nature of the Presidency, as envisioned by the founders, and discussed in Nixon also has been widely relied upon here. The judgement observes that the President is a “vigorous” and “energetic” executive. The same reasoning that the attention and energy of the President cannot be diverted towards frivolous matters applies here as well. This “immunity doctrine” is a Common Law Principle that has been widely used to protect the judges from undue public wrath. However, British jurists have held that the aim of the immunity doctrine is not to provide protection to a corrupt judge, but to ensure that the honest judge can exercise his duty.
However, in the case of Clinton v. Jones, the Supreme Court established the doctrine of a “functional approach” to test the immunity of the President. It held that immunity must not be granted solely based on the virtue of the office, but by careful analysis of his actions which merited a lawsuit. In doing so, the Court did not explicitly overrule Nixon. In Nixon the primary argument of the court was that the President must not be overly cautious while exercising his duties. Since the “principal rationale” approach was taken here, where actions would be analysed instead, there was no reason to fear for official acts of the President, and at the same time there would be no immunity for unofficial acts.
The Zones of the President’s Powers
The judgement divides the powers into three distinct zones viz. Acts under core constitutional purview, peripheral acts, and unofficial acts. The President has been granted absolute immunity for the first, presumptive immunity for the second, and no immunity for the third.
While it has been made more concrete in Trump, the zonal division of the President’s powers is not new jurisprudence. The term “outer perimeter” (of the President’s powers) came into judicial parlance in Nixon. The Court has simply reiterated that the functions which are inside the core and the outer perimeter of the President’s functions are not liable to prosecution. However, those which are outside the realm of his duties are. The fresh jurisprudence laid down in the present case is the metric to distinguish which powers are official and which are not. When the President takes any action pursuant to the powers explicitly granted to him under the Constitution, it is an official act. However, due to the vastness of his powers, and the vagueness of the Constitution when it comes to the discretionary powers of the President, it is not possible to set up a brick wall around the official powers of the President. This is where the “outer perimeter” comes in. The definition of an action within the outer perimeter is simple: just as long as it is not manifestly illegal, or palpably beyond his authority, the action shall be within the outer perimeter and judicial immunity shall apply.
It is not arguable that such distinctions are incredibly vague and give a tonne of power to the President. Therefore, a balance of probability must be set up here. Will it be more harmful to limit the immunity of the President to the official acts, and make him criminally liable for anything beyond that, or will it be more harmful to limit the most powerful executive in the country to the crippling limitations of statutes which are ordinarily meant for the ordinary population. There is no question that the answer is the former. While some opponents of the judgement have argued that the distinction would enable the President to take actions such as assassinate a political opponent and get away it, it is clear that such arguments are unnecessarily childish and whimsical. No amount of immunity granted by the Supreme Court can take away the power of the Congress to impeach, and furthermore any candidate sitting behind the Resolute Desk knows that such actions would be political suicide for not only himself, but also his party. Therefore, this judgement has struck a fine balance between political realities and executive efficiency.
The Separation of Powers
Unlike in India, where the Judiciary has the power to bully the Executive into submission, the US Supreme Court has ensured that under the doctrine of separated powers, neither of the organs gets an upper hand over the other.
An important safeguard to the powers of the President laid down in this case is that as long as the President is acting in furtherance of the powers granted to him in the Constitution, neither an act of Congress, nor judicial review shall take such powers away from him. Such acts are both conclusive, and preclusive and it does not matter if it goes against the will of Congress. Neither Congress, nor the Courts have any power to intervene and overrule the action of the President when the power exercised is directly derivable from the Constitution. In the case of United States v. Klein, President Lincoln used his powers to grant a pardon (provided under Article 2 of the Constitution) and restore the property rights of any individual who had participated in the rebellion against the Union, subject to the fact that they swore allegiance to the Union. Subsequently, Congress enacted a Bill that forbade the use of pardoning powers as a means to restore property. This Bill was declared unconstitutional because it acted as a limitation on the powers of the President which were granted by the Constitution. Therefore, the power of the President for official actions is directly derived from the Constitution, without any unnecessary filtering by the other organs of the government.
However, the President always does not have the upper-hand in his interactions with the other two branches. In a nuanced separation of power, the Court ensured that he was neither above, nor below the other action.
In the case of powers that are concurrently shared with the Congress, the President has no immunity. Furthermore, the Court upheld the decision in United States v. Burr which held that the President is not immune to a subpoena (summon) by a court. However, so as to not compromise fragile state secrets, the Court allowed the President to withhold the production of sensitive documents as evidence. A presumptive privilege is therefore granted to Presidential communications.
Lessons for India and the US
The Constitutional structure of the United States can provide valuable lessons to India where judicial dominance has become the norm, and both Parliament and the Cabinet have become submissive to the whims of the Supreme Court. India is rightly known as a “republic of writs”, where under the guise of writ jurisdiction, and protection of constitutional rights, Courts have the power to strike down almost any action of the government. Neither popular opinion through Parliament nor administrative efficiency through the Cabinet holds the candle to the writ jurisdiction of the Court. The American concern of unnecessary interruption to the work of the President has hardly ever been argued here, let alone been made a concern while writing judgements under writ jurisdictions. In India, the overwhelming constitutional precedent has been in favour of minimal executive interference in the judiciary and maximal judicial interference in the executive. While the courts, especially the constitutional courts, have always paid lip service to the idea of executive discretion, in practice the ‘limited grounds of review’ they have set up are worded so widely that almost all discretionary matters of policy can be dragged in for a second opinion. Indeed, the situation has gotten to the point where the entire judicial structure can well be termed as a ‘rubber-stamp court’: an entire government bureau in itself, dedicated to the scrutiny of the actions of an already voluminous bureaucracy. Litigation against the government forms the single biggest case burden in the judicial structure, compromising the working efficiency of both arms of government. The theory solidified by decades of practice that the judiciary ought to be a check on judicial discretion has only served to make decision-making more obtrusive and indiscrete.
On the other side of the spectrum, the US system must understand that when too much power is provided to one individual, problems are likely to arise at one stage of the other. Therefore, a cabinet system of government where the ministers of the cabinet are elected officials, instead of “Secretaries” nominated by the President may serve their purpose better. Either way, both sides have much to learn from each other.
Conclusion
By creatively utilising precedent, and constitutional morality, the US Supreme Court has carved a rock-solid jurisprudence of immunity around the President. While giving the executive immense powers is generally not appreciated, this judgement is more subtle than it appears in the first glance. The President of the United States is considered to be a gentleman, and the powers given here ensures that he doesn’t become a weak man. As has been mentioned here, constant judicial and congressional scrutiny will ensure that he remains in his lane, while not getting trampled by the other organs. It will also enable the President to rise to the occasion as the foremost world leader, when there is a need for it. Most critics view it with unnecessary cynicism. However, their arguments are flawed on the major grounds that they do not account for political checks on the powers of the President. Hence, we cannot help but appreciate the Supreme Court for having taken a bold and decisive action on the matter.
The Author is a 4th-year student from The West Bengal National University of Juridical Sciences, Kolkata
Image Credit: presidentialsystem.org
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