This Speakout was submitted by the Bob Burns, SDSU professor emeritus of political science.

The recent Trump vs U.S. ruling of the U.S. Supreme Court regarding presidential absolute immunity from criminal liability in the performance of core constitutional powers and a presumption of immunity in the performance of other official duties has revealed the Court’s ignorance of the fundamental tenets of constitutional democracy starting with adherence to the rule of law.

When the framers of the U.S, Constitution abandoned the Articles of Confederation and proposed a wholly new Constitution of the United States, they clearly announced that they were discarding all remnants of a monarchy in which the monarch can do no legal wrong and were embracing instead a system of governance based upon the rule of law as prescribed by representative law makers and applicable to all. While the framers did create a strong executive through the language of Article II, they did not delegate the president any immunity from criminal liability for presidential actions explicitly or implicitly. No person stands above the law is a foundational tenet of our constitutional democratic republic.

Chief Justice Roberts in authoring the majority opinion in the 6-3 ruling of the Court dwells on Alexander Hamilton’s writings in Federalist 70 in an attempt to convince us that the framers implied absolute immunity from criminal liability for the president. Hamilton argues in Federalist 70 for the necessity of the chief executive to act with “vigor and energy” in executing the law of the land. Roberts concludes, in a quantum leap of logic, that the chief executive could not act with vigor and logic if facing the potential of criminal liability for his actions. Of course, all presidents up to Trump served with an understanding that they enjoyed no immunity from criminal liability including Lincoln during the Civil War, Wilson during WWI, and FDR during the Great Depression and WWII. None of them showed any signs of timidity in asserting their leadership during those crises. Still, Roberts and his five associates feel very good about their logic for it allows them to reach the conclusion they wanted and simultaneously embrace their love of originalism or understanding the framer’s meaning or intent in reaching that conclusion.

If Roberts had studied the Federalist Papers ( written as campaign documents to win ratification of the proposed Constitution by the states) a bit more studiously, he would have come upon Hamilton’s words in Federalist 69 in which Hamilton states in response to a question regarding limits on the power of a strong executive, “The President of the United States would be liable to be impeached and upon conviction of treason, bribery of other high crimes or misdemeanors, removed from office and would afterwards be liable to prosecution in the ordinary course of law.” These words are explicit and destroy Roberts’ implied logic above.

It is appropriate to compare the Trump vs US ruling to the US vs Nixon (1974) ruling in which a unanimous Chief Justice Burger-led Supreme Court (with Rehnquist not participating) upheld the rule of law and ruled against a president facing impeachment and potential criminal prosecution. US vs Nixon is the famous White House Oval Office Tapes case in which President Nixon asserted executive privilege (protected communications) while refusing to deliver the audio tapes of multiple conversations in the White House Oval Office between the president and his advisors which, if released, might serve as damning evidence in a House impeachment hearing and a potential criminal trial of Nixon for obstruction of justice and other offenses. The Court ruled that executive privilege is” intrinsically rooted in the separation of powers principle” and due great deference from the sister branches. But, the Court continued, the privilege is not absolute and, in the case at hand, the assertion of executive privilege must bow to the judiciary’s need for everyman’s evidence in a pending criminal investigation. Obviously, the unanimous Court did not recognize any presidential immunity from criminal liability or the exclusion of presidential communications in criminal prosecutions because the Court’s ruling freed recorded presidential testimonial evidence to be used in a potential criminal prosecution of the president. Recall, President Nixon soon after resigned from office and accepted a peremptory pardon from President Ford for any previous criminal federal offenses. US vs Nixon has not been reversed.

There are some assuring thoughts following the Trump vs US ruling. First, presidential subordinates who carry out a criminal act in response to a presidential order do not enjoy immunity. Knowing this may temper the willingness of subordinates to do the president’s bidding. Second, presidential actions are still subject to judicial review and invalidation when the president strays beyond presidential constitution or statutory authority although compelling compliance has been made more challenging.

Third, presidents are still subject to House impeachment and Senate removal although the causes might be narrowed to purely private presidential acts of treason, bribery and other high crimes and misdemeanors. Finally, Trump is the first president who found a need to assert immunity from criminal liability although Nixon had a need. Perhaps our nation can go another 236 years before any future president will find a need to assert the protection.