No. of Recommendations: 5
When, in our 200 year history, was criminal immunity required for the President to make the correct choice for the country?
Channeling the what I think the SCOTUS will say....always?
For example, in 1952 Harry S. Truman made the decision to nationalize the country's steel mills - basically just seized them from their private owners. This was in order to ensure that steel worker strikes wouldn't jeopardize the Korean War effort. Ultimately, Truman's actions were ruled unconstitutional by the SCOTUS.
The President's civil immunity clearly protects Truman from the rather well-supported claims that he damaged their businesses by unlawfully trying to seize the steel mills. But should he face criminal charges for conspiracy to commit theft? He certainly meets all the elements of that crime, at least under Florida law as it's written today - "a person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) deprive the other person of a right to the property or a benefit from the property." Could Truman be charged for that crime?
Or perhaps a more recent example - President Obama asserted executive privilege to prevent the disclosure of various government records to Congressional Republicans during the "Fast and the Furious" investigation. That assertion of executive privilege was later overturned by a federal judge, who ruled that Obama had an obligation to provide Congress the documents. Doesn't take much of a stretch to argue that President Obama was engaged in a conspiracy to obstruct a federal proceeding by wrongfully withholding those documents - for the purpose of improving his personal political power to boot.
We've never needed to invoke immunity in contexts like that before, because no one would ever imagine prosecuting a President in those contexts. But if Truman or Obama (or any other President) had actually faced the risk of being hauled off into criminal court for making those kinds of decisions? Maybe they're a lot more tentative in fulfilling their office.
President's haven't needed immunity for the last 200 years in a legalistic framework, because they've enjoyed de facto immunity due to prosecutorial tradition. No prosecutor would ever have thought to bring charges against a President for things that are so obviously within the scope of their official duties. But if any ever had, you can bet the courts would have dismissed those charges under at least a finding of qualified immunity, and probably would find absolute immunity for those things too.
