President Joe Biden this week proposed an amendment to restore the Constitution to its original meaning and overrule the Supreme Court’s alarming, atextual, ahistorical decision in Trump v. United States. That precedent immunizes presidents from prosecution for crimes perpetrated while in the White House. The immunity summoned into being by the 6-3 majority is indistinguishable from “the King can do no wrong” doctrine of the British empire that provoked the American Revolution.
Is Biden’s proposal an overreaction? Consider the court’s majority did not dispute the dissent’s unnerving hypotheticals: “Under the majority’s reasoning,” Justice Sonia Sotomayor said, the president “will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon. Immune. Immune, immune, immune.”
The Trump decision is hands down the worst in the Supreme Court’s history. It is unsupported by even a single syllable in the Constitution’s text. Immunity is conferred on members of Congress for legislative acts in Article I, section 6, clause 1, but nowhere else. Thus, federal judges can be prosecuted for crimes committed in discharging their judicial duties, like accepting a bribe in the case of Judge Alcee Hastings. President Gerald Ford assumed former President Richard Nixon could be prosecuted for his Watergate cover-up crimes when he pardoned Nixon. The blanket presidential immunity ordained in Trump v. United States was not even discernable in the penumbras, emanations or subtext of the Constitution.
It is inconceivable that the Constitution’s authors believed they had bestowed on the president the power to commit crimes with impunity. They summarily rejected Alexander Hamilton’s proposal for electing the President for life and Pierce Butler’s suggestion to endow the president with the power to declare war — both far short of a presidential power to dispatch Seal Team 6 to rub out an opponent like a scene from “The Godfather.”
Recall also Benjamin Franklin’s response upon departing the constitutional convention in Philadelphia to Elizabeth Powel’s inquiry, “Well, Doctor, what have we got — a republic or a monarchy?” Franklin replied, “A republic, if you can keep it,” an answer that would have been nonsensical if presidential immunity from criminal prosecution had been enshrined as a constitutional privilege.
Contrary to Trump, the framers intended to deter, not embolden, fearless or rash exercise of presidential power. Franklin justified impeachment and removing presidents out of fear they would otherwise abuse their power.
James Iredell, at a North Carolina ratification convention, emphasized, “If the President does a single act by which the people are prejudiced, he is punishable himself. … If he commits any crime, he is punishable by the laws of his country.”
At the constitutional convention, Edmund Randolph maintained that impeachment was necessary because “the Executive will have great opportunities for abusing his power.” Elbridge Gerry, vice president under father of the Constitution James Madison, underscored that impeachment dispels the fallacy that our “chief magistrate can do no wrong.” Madison emphasized in the first Congress that the president would be subject to impeachment for “the wanton removal of meritorious officers.”
George Washington, who dismissed the idea of kingship after his 1781 victory at Yorktown, presided over the constitutional convention. Washington would have fled the convention in disgust if he believed the Constitution immunized presidents from criminal prosecution.
Previous constitutional amendments have been adopted to overturn misconceived Supreme Court decisions. Biden’s proposal to reverse Trump v. United States is not virgin territory. But ratification will not be easy sailing. Two-thirds majorities in the House and Senate are needed followed by ratification in 38 state legislatures. The nation’s Red-Blue divide will slow or confound ratification, although the amendment handcuffs both Democratic and Republican presidents with the rule of law.
As an interim measure, Biden should immediately issue an executive order to waive the presidential immunity bestowed by the Supreme Court. It would legally bind successors unless revoked. Revocation, however, would be politically risky by suggesting the president intended to commit crimes while in the White House. President Ford’s 1976 executive order prohibiting assassinations has endured for 48 years because revocation has been politically and diplomatically unthinkable.
Biden might balk at this idea because Donald Trump has threatened to prosecute him and his family if he triumphs in the 2024 election. But the rule of law is too important to be left to political calculations.
Bruce Fein (bruce@feinpoints.com) was associate deputy attorney general under President Ronald Reagan and is author of “American Empire Before the Fall.”