An economic analysis of presidential immunity
At Thursday’s Supreme Court hearing on Trump’s immunity claim, Justice Alito worried that prosecuting former presidents would create an incentive for incumbent presidents to subvert democracy to remain in office and avoid prosecution (Transcript, p. 110-11):
JUSTICE ALITO: All right. Let me end –end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is –is the incumbent.
MR. DREEBEN: Of course.
JUSTICE ALITO: All right. Now, if a –an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
Commentators have been largely dismissive of Alito’s concerns. I believe his worry is misplaced, but it deserves careful consideration.
The oral argument highlights two basic downsides to subjecting the president to criminal liability for official acts. The first is that the threat of criminal liability will lead the president to be overly cautious in performing his constitutional duties (the president will be “chilled” or lack “energy”). The second is the concern Alito flags in the quote above – that fear of criminal liability will lead an incumbent president to subvert democracy to avoid prosecution at the hands of a rival after the end of his or her term.
To evaluate these concerns, it is helpful to distinguish official acts that are unrelated to election processes (“policy acts”) and official acts that relate to the conduct of elections (“election acts”). Liability for policy acts can create an incentive for election subversion. A president who may have violated a law in the conduct of his or her official duties will have an incentive to subvert election procedures to remain in office and avoid prosecution. Immunity for policy acts reduces this incentive for election subversion. This is a potential benefit of immunity. How large this benefit is will depend on several factors, notably how reliable the “layers of protection” are that protect ex-presidents from overly zealous or malicious prosecution. Protections include prosecutorial professionalism, grand juries, and the courts. (Alito seems skeptical of the effectiveness of these protections, see the discussion in the transcript beginning on page 100.) Immunity also avoids chilling desirable policy actions, which is a benefit, but it allows presidents to act in harmful ways that would otherwise be prohibited by law.
Next consider liability for illegal election acts, specifically acts that are aimed at election subversion, which Trump is accused of. In this case, unlike in the case of illegal policy acts, liability unequivocally reduces the incentive for subversion. It also seems highly unlikely that liability for illegal acts of election subversion will inadvertently chill desirable election acts.
The upshot is that to prevent election subversion we need to rely on courts and other political actors to block subversion ex ante, and on the fear of criminal liability ex post. These protections may sometimes fail, but the alternative – a regime of immunity for election subversion – is unequivocally worse. If the Supreme Court is worried about chilling effects on policy acts, then it should simply carve out an exception for election subversion and leave questions about criminal liability for policy acts for another day.
On the evidence so far, it seems clear to me that the right-wing majority on the SCOTUS is worried about anything that will interfere with Trump’s freedom of action. I’d be delighted to be proven wrong.
Kramer
to the extent that i understand you, I agree with you. It seems the Supremes want to write a law that will solve the problem for the next thousand years. Perhaps they are not expecting a future …near future…court to find their finding unconstitutional.
Meanwhile, the whole idea of “under the law” is that we can rely on “the law” to get it right most of the time. I can’t see why the President should be exempt from suffering his chances with “the law” the same as ordinary people. If he is likely to be subject to political, or just malicious, prosecution because his office requires him to sometimes do things that some people don’t like a lot, well actually the rest of us are subject to the same chances.
The supremes may be too blind to see that what they are doing is destroying democracy as we know it, or they may have been chosen for that office for that very reason.
Meanwhile no law, no constitution, however well written can answer in advance every question that might come up. And no law or constitution, howver well written can survive bad faith among the rulers or great ignorance among the ruled. Both of which we have today.
Eric:
Three presidents have been impeached and trump twice. All remained in office. In any case, the Senate would have to vote on an impeachment and it takes a 2/3ths majority to remove a president.
Nixon resigned from office after Watergate. From these results I would think presidents have less to worry about now than previously. The politics of each party is polarizing and they will stick with their man regardless. Not so for Nixon.
Given all of this, it is unlikely a president could be removed from office. And one has led an insurrection, is defying the courts, and running for president again. trump does not appear too worried about losing in court. He desperately wants to go to jail, is provoking the court, and no one is going to give him what he wants . . . martyrdom.
Maybe 5 Scotus justices will believe trump should be told no. I am not seeing it at this point. Alito and Thomas will not act. Alito in the Idaho issue does not believe women should have a say for abortion, is concerned about the baby first and the women secondly, and regardless of whether the woman dies. Chicken of the egg scenario.
Bill
i read somewhere that Nixon quit not so much because of Watergate per se, but because the neo-cons had turned against him because of “detente.”
The unofficial fourth branch of Government –The democrat controlled Administrative State in DC led by the Senior Executive Service has employed lawfare for election interference to the nth degree. The executive branch has been harassed by this multi generational self serving civil service protected gang since Garfield was assassinated and the patronage system replaced. Executive immunity is the only wall that allows the presidency to function to some degree without constant threat from this unelected lobbyist fed menace to America. Trump refused to staff up their agencies and his executive Schedule F would have put the SES under the control of the executive branch—horror of horrors
Wow! Fruit-Loop Kool-Aid …
i agree. too much sugar in his diet.
I hope the Supreme Court gives the president full immunity. With the democratically controlled Senate, Biden can have the 6 conservative members assassinated, avoid impeachment, and have 6 new members confirmed before the election. Ah, irony and sarcasm rolled into one.
irony and sarcasm aside, someone should whisper the possibility into their ears.
Whatever you do you shouldn’t say it out loud …