Stu Bykofsky: Limited immunity is not a novel concept

The hot topic over the next few days is if and when Presidents should get immunity for official acts ordered as part of his (or her) “core constitutional powers,” even when some believe those acts are criminal. 

As a sampling of public opinion, here’s a snap poll conducted by Michael Smerconish, who hosts a show on left-of-center CNN, whose audience is mostly left-of-center.

Not surprisingly, a large majority — who no doubt hate Donald J. Trump — said that Presidents should not be free from prosecution for criminal acts, a vote I believe they were casting specifically against Trump.

I ask them if they would prosecute — it’s not too late — Barack Obama for a secret “kill list” and specifically the extralegal execution of an American teenager without a trial, as reported by the leftist The Atlantic?

Would they prosecute George W. Bush for “shock and awe”?

Bill Clinton for illicit sex with a subordinate?

Harry S Truman for dropping the atomic bomb?

Franklin Delano Roosevelt for incarcerating Japanese-American citizens?

I am no fan of Trump’s, but I am a fan of equal treatment under the law, and that extends to people I don’t like. Lady Justice is portrayed wearing a blindfold to represent Law should be blind to who you are, but not to what you have done.

Members of Congress, mayors, police officers, among others, enjoy qualified immunity for acts they commit while carrying out their official duties. It was established in 1982 by what was then a majority liberal U.S. Supreme Court.

What the current conservative Supreme Court did was extend that principle to Presidents, while not immunizing them from prosecution for nonofficial acts.

The Supremes returned the case to lower courts to figure out how to define “official” and “nonofficial,” and I can see that as a rat’s nest that will take decades to resolve.

Much easier to resolve, I think, was Justice Sonia Sotomayor’s hypothetical about a President ordering Seal Team Six to kill a political opponent. I can’t see that as legitimate “core Constitutional” power. It is personal and political.

If you believe the High Court has given Presidents unlimited power, can you imagine Joe Biden ordering Seal Team Six to assassinate Trump — and getting away with it?

Theoretically, I suppose it is possible for a President to go rogue within the “core,” and he would be “above the law.” But he would have to face judgment in the form of the electorate.

I view Trump’s Jan. 6 speech not as a “core” Presidential action, but him speaking as a failed political candidate, which means no immunity from prosecution for what he said.

Sotomayor also argued the majority has made the President “above the law.”

I see the President — with no immunity for nonofficial acts — no more above the law than public officials who enjoy qualified immunity.

My rule of thumb is to treat everyone equally — even Trump.

Stu Bykofsky’s work is published at

9 thoughts on “Stu Bykofsky: Limited immunity is not a novel concept”

  1. If Seal Team 6 carried out the order to kill the political opponent, wouldn’t they also be criminally liable for carrying out an unlawful order?

  2. American Presidents never needed immunity until Trump. Given Trump’s recent conviction and those of his associates I can see why he would want it.

    1. As far back as 1867, in Mississippi v. Johnson, the Supreme Court placed the President beyond the reach of judicial direction, either affirmative or restraining, in the exercise of his powers, whether constitutional or statutory, political or otherwise, save perhaps for what must be a small class of powers that are purely ministerial. While still vague overall, the problem has been litigated in the past.

  3. As I write (coming soon to a website near you) the dissenting females on the immunity decision were so wrong and histrionic as to be laughable with their hypotheticals.

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