Immunity: Not so simple – American Thinker

The most pervasive claim from the Left as to why the U.S. Supreme Court should not have taken up the Trump immunity issue is that it is supposedly so straightforward as not to require any further discussion. It is ever so simple, they say, and besides, the D.C. Circuit’s opinion was so masterful that nothing further needs to be said. Therefore, the Left continues, the only possible motive for taking up the case is the improper purpose of delaying Trump’s criminal trials.

The claim is dishonest. Let me enlighten the Left about a few inconvenient facts.

First, the question of Presidential immunity in criminal cases has never been decided before. It never came up before because until now we never had such Banana Republic weaponizing of government by multiple indictments of a past President and current candidate. Cases of first impression are rightly favored by the Supreme Court for determination, and this one was caused by the very people who claim it should not be heard!

Second, the question of weaponizing the government to strip a political opponent of his money, time, and speech so he cannot campaign effectively is not only extremely important for the present, but for the future. To pretend otherwise is farcical. It is precisely this sort of case that only the Supreme Court should ultimately decide. To claim that a lower court should have the final say on such an important issue is cynically disingenuous. Strike two: not only is the case one of first impression, it is vitally important. It is one the Supreme Court should exercise great care in analyzing correctly.

Third, and most significant, the issue is not at all simple. The D.C. Circuit’s opinion was so sweeping that it left no room for any distinctions or guardrails. A total rejection of any and all immunity claims would create a debilitating curb on future executive actions, thus upsetting the constitutional structure of separation of powers. It is up to the Supreme Court, now that the issue has finally been created by the Left, to define as carefully as it can those areas and circumstances in which immunity should (and should not) apply. There is now a pressing need to establish a set of guidelines that would best uphold the delicate balance between the Constitution’s framework and guidance to future Presidents. Perhaps unwittingly, the Left has created, by the template of so many indictments, the opportunity for the Supreme Court to consider a range of situations for assessing immunity. Now that the Left has chosen the hitherto unprecedented strategy of subsequently criminalizing prior Presidential actions taken while in office, it would be an intolerable burden to make Presidents perform their executive actions in a wholly undefined, ambiguous atmosphere. Ambiguity might facilitate future dishonest weaponization, but it would ill serve governance of our democratic republic.

Let me predict: this immunity issue will produce a whole set of opinions and analysis, both in concurrence and dissent, such that We the People will then be able to observe the proof of just how difficult the immunity question is. Will the Left then finally admit the issue is not so simple? 

George Shuster was a Phi Beta Kappa graduate of Yale, a National Science Foundation Fellow at MIT, and graduated in the same class at Yale Law School as Bill and Hillary Clinton.

Image: National Archives