Opinion | Trump’s view of presidential immunity would do irreparable damage

When a nation allows the outlandish to become routine and accepts dangerous claims as normal, it loses its moral compass and its capacity to sustain liberty.

So do not shrug off how significant it is that the Supreme Court will soon hear Donald Trump’s claim that presidents should enjoy absolute immunity from prosecution for illegal acts performed in office. How the court handles this case involving the former president’s efforts to overturn the 2020 election — and how the country responds — are tests of the nation’s capacity for self-government under the rule of law.

One temptation to resist: Denigrating the case as just another instance of Trump’s willingness to litigate anything to delay his various trials until after November’s election. This fails to take seriously what this case tells us about how he would govern if he returns to power.

Trump is saying something no other presidential candidate has ever said: That the only way to be an effective president is to be willing to break the law. “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” his lawyers wrote in their brief. “That would be the end of the Presidency as we know it and would irreparably damage our Republic.”

Well. Let’s leave it to psychiatrists to determine what “post-office trauma” might be. The breathless subtext echoing throughout their brief is that it takes a criminal to be a good president. This has implications voters should take very seriously, including for national security.

In one of the most powerful amicus briefs filed with the court, a group of retired generals and admirals and former service secretaries warned that absolute immunity would “severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law.” Think about that. “Under this theory, the President could, with impunity, direct his national security appointees to, in turn, direct members of the military to execute plainly unlawful orders.”

This would threaten the proper functioning of our military and also constitutional democracy. “Particularly in times like the present, when anti-democratic, authoritarian regimes are on the rise worldwide,” they write, “such a threat is intolerable and dangerous.”

Trump’s startling desire for presidential dictatorship has been partly obscured by seemingly sober legal arguments over whether any presidential acts should be shielded from prosecution.

The Supreme Court signaled that this is the issue it wants to rule on when it explained why it took the case — as opposed to affirming, as it should have, a well-argued court of appeals decision denying Trump’s claims. It is seeking to determine “whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

There are multiple problems with the Supreme Court’s decision-making so far. The justices could have accepted special counsel Jack Smith’s request last December to skip the appeals process and take the case immediately. This would have allowed plenty of time for the interference case to go to trial before this year’s election.

Instead, the court rejected Smith’s request, let the appeals process go forward and then, when it finally did take the case, scheduled its hearing on the last day of its term, April 25.

The court did not have to use this litigation to make a broad pronouncement on presidential immunity. My Post colleague Jason Willick recently argued that by including Trump’s effort to encourage the Justice Department to find nonexistent voter fraud as part of his indictment, Smith opened the way for the court to deal with the “official acts” question.

But a prosecutor should not have to resist charging a former president with abuse of power simply because he’s afraid the Supreme Court might delay his case.

Besides, as a group of historians of the founding period noted in a brief to the court, “the Framers never contemplated giving the President any role in the conduct of elections or transfer of power.” It’s a stretch to see Trump’s meddling as “official.”

And as former officials from five past Republican administrations argued in another brief, “even if one could hypothesize a circumstance in which immunity for a former President might be warranted, no tenable formulation of immunity could reach defendant’s machinations alleged here.” In “appropriate” future cases, they argued, the court could prevent unjustified federal prosecutions of presidents by respecting “the constitutional limitations on Congress’s power.” Congress can’t criminalize presidential activities in areas where the Constitution gives clear authority to the executive branch.

Having pushed this case so late, the Supreme Court has an obligation to rule as quickly as it did last February in restoring Trump to the ballot after multiple states attempted to disqualify him. And voters, who will have the final say, would do well to be wary of a candidate who tells them he believes a president’s powers are limitless.

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