Daily Herald Opinion: Supreme Court ruling on immunity has perilous implications beyond the Trump trials

The reaction to the recent Supreme Court hearing on “presidential immunity” has tended to focus on the impact that upcoming ruling will have on prosecutions of former President Donald Trump. That, and whether the deliberations will delay most of those trials until after the November election.

That focus is natural in many respects, we suppose. After all, the matter has come before the court as a question raised in one of those prosecutions, and the ruling, whatever it is, will have an impact on those cases

As important as all of that is — and it is important — we fear that the public, the partisans, the news media, and perhaps even some of the justices themselves have lost sight of the greater impact this ruling will have in granting or curbing presidential entitlement.

“The president is not above the law.” For years, we have heard the echo of that phrase throughout our civic and political discourse. Is it true? Does this Supreme Court believe it to be true?

Frankly, we all need to be concerned that the high court appears to be leaning toward an irredeemable expansion of presidential powers that is both unnecessary and potentially dangerous — and contrary to the vision of the Constitution's framers, whose meticulous intent was to create a government safeguarded from abuse by a three-pronged system of checks and balances.

The issue is beyond Trump and what anyone thinks of him. This is lasting, potentially an empowerment of every president from Joe Biden forward.

In its hearing on April 25, many of the justices expressed concern about the possibility of presidents being subject to prosecutorial harassment for political reasons. But frankly, if that is the concern — and there's been scant evidence in the 235 years of the presidency to support being preoccupied by it — why would there not be a similar concern about prosecutorial harassment, say, of members of Congress?

In his questioning, one justice cavalierly disregarded the grand jury system as little more than a rubber stamp for prosecutors. But if that is the concern, does not the court have a lot bigger issue than the harassment of presidents to worry about? If that is the concern, what about the rest of us? Are we to be subject to a flawed grand jury system but the most powerful person in the world is not? If it's the grand jury system that is untrustworthy, the answer is not to decree that there are no criminals. The answer is to fix the grand jury system.

Based on the questioning at the hearing, it sounds like many justices are considering a ruling that would expose a president to prosecution for criminal conduct outside of the official duties of the office, but to provide a president with limited immunity for activities related to the office. Why? Why the distinction? Why should a president be allowed to behave unlawfully under any circumstances?

None of the rest of us are allowed to break the law. A military general is not allowed to break the law. The following example is extreme: But when Adolph Hitler sent millions to the death camps as part of the “official” function of his office, should he have been granted immunity?

“The most powerful person in the world with the greatest amount of authority could go into office knowing there would be no potential penalty for committing crimes,” Justice Ketanji Brown Jackson said during the April oral arguments. “I'm trying to understand what the disincentive (if the president has immunity) is from turning the Oval Office into, you know, the seat of criminal activity in this country.”

Many of the other justices seem concerned about the potential for "prosecutorial harassment" to limit the power of the presidency. We have heard no argument to explain how that would be the case. The justices need to be more concerned about the potential for full-scale abuse that a license of immunity would grant the president. Any president.

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