Conflicting feelings about the SCOTUS presidential immunity ruling.

To eliminate a thing, must one first recognize and explicitly grant a thing?

I’ve written about the most recent batch of Supreme Court decisions here and here, but I haven’t said anything about the one involving presidential immunity from prosecution yet.

That’s because I have mixed feelings about it. And as I turn the issue over and over in my head, I surprisingly find that I come down on the side of liking the decision.

This SCOTUS decision arose from one of the many legal battles Donald Trump has been embroiled in. I personally think it’s obvious that each and every one of these cases is a pathetic (and spooky) example of political lawfare.

Not one of them has any real merit or would have been leveled against Trump were he not seeking to unseat Biden this year as president.

Biden and his supporters are weaponizing the justice system to kneecap a political opponent whom they’ve hypnotized themselves into thinking is an orange-hued second coming of Adolf Hitler.

It would be comical if it wasn’t so disturbing.

So, in one of these cases (I forget which one) Trump put up the defense that he has immunity from prosecution for anything he did while president. The matter quickly rose through the courts, culminating in this bombshell of a ruling.

SCOTUS ruled that presidents (and former presidents) have immunity from prosecution for any “official” acts done while in office. However, they cannot extend this immunity to any “unofficial” acts.

It’s a new principle and I’m very curious going forward to see which kinds of presidential actions are going to be put in which bucket. After all, what’s an “official act”, exactly?

But setting that aside, this ruling seems terrible from a libertarian perspective. Presidents (through the orders they give to their massive administrations) are very often guilty of massive crimes. The last thing we should want is that they receive official immunity for those crimes.

But here’s the thing, presidents already enjoy de facto immunity from prosecution. George W. Bush engaged in torture all throughout his terror wars. He also lied us into Iraq War Two just like his father lied us into Iraq War One.

Obama drone-bombed multiple US citizens without even bothering to charge them with a crime, let alone getting a conviction. Obama also funded and armed al Qaeda in Syria and other places, committing literal treason against the US.

Obama also unleashed the lunatic monster Hillary Clinton to destroy Libya, causing untold havoc that the region (and Europe) are still trying to deal with to this day.

Presidents have lied us into all kinds of wars, going all the way back to The Maine (remember it!), and they have often committed war crimes. None of them have ever been prosecuted for these crimes. They obviously already have immunity — just not officially.

So, this decision makes two unique changes to the status quo.

The first is that it should result in a lessening of this destructive and evil lawfare we’ve been witnessing and Trump has been weathering. It’s a sign of living in a Banana Republic when one political group uses the legal system to target their political rivals. This ruling should stop that.

The second is that it changes presidential immunity for “official” acts from being de facto to de jure. In other words, the decision codifies the already existing presidential immunity into law.

And the interesting thing about having a "general rule" actually codified into law via Supreme Court decision is that now, it can be "un-codified".

Notice the parallel with Chevron deference. Regulatory bodies have been abusing their power for over a hundred years, but it wasn't until that power was codified in 1984 in the Chevron case that regulatory overreach could be "un-codified" as it was this year.

So maybe this year's Supreme Court presidential immunity ruling could actually lay the legal groundwork for a situation where another SCOTUS ruling in the future explicitly outlines the ways presidents can be prosecuted "under color of office".

I think it’s overall a good thing for the subject of presidential criminality to be brought to the surface and analyzed. This decision does that. I’m hoping that the “taken for granted” presidential immunity, once identified and outlined, can then one day be reversed and explicitly eliminated.

It’s admittedly a thin hope, but it’s a real one.

Ultimately, though, if we want our “leaders” to quit abusing us, stealing from us, kidnapping and murdering us, etc, we have to remove their power to do so.

Our government has metastasized in size and scope of power over the years to be unrecognizable to the Republic our Founders bequeathed us. We need to roll it back in a big way.

Here’s a sweet idea: How about the Supreme Court come to their senses, re-examine the Commerce Clause and the General Welfare clause of the US Constitution, and strike down about 95% of the administrative state!

A man can dream…

Naturally,

Adam

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