In the 1760s William Blackstone in his seminal work, Commentaries on the Laws of England, wrote “It is better that 10 guilty persons escape than one innocent suffers.”
That statement, sometimes referred to as Blackstone’s formulation, became a maxim in the British legal system and a foundational principle of our American legal system.
It is this act of excusing the poor behavior of others to ensure fairness and protection for those acting in integrity that came to mind when I read the Supreme Court’s recent decision on presidential immunity.
The court found that a president is entitled to absolute immunity from criminal prosecution for actions within his core constitutional authority. The court also held that a president enjoys presumptive immunity when it comes to official acts. There is no such presumption concerning unofficial acts.
Critics immediately slammed the decision as placing a president above the law, arguing the decision provides a shield to former President Trump for actions relating to overturning the results of the 2020 election and the insurrection on Jan. 6, 2021.
Because of Supreme Court decisions in the past few years, public confidence and goodwill in the court is at an all-time low. This decision raises even more concerns — rightly or not — about the ethics and political motivation of certain members of the court.
Setting aside consideration of the court’s image, I see this case a bit differently. At its most basic level, the court is simply saying the Constitution — the rule of law — provides and has always provided this protection for the president.
While it is true the case was brought in response to the actions of former President Trump, the court appears to have aimed for a known standard to protect future presidents, beyond Trump, in the exercise of official duties.
Or as Justice Neil Gorsuch put it, “We’re writing a rule for the ages.”
Respectfully, I wish the court had considered and ruled on the facts of this case with an eye toward future cases.
Most individuals with substantive experience in the federal executive branch agree that the president must be able to make hard, controversial decisions without fear of criminal prosecution. However, I am unaware of a single official, current or former, who can cite one example of when a president was too afraid to take necessary bold action to protect our country because of fear of prosecution by a subsequent administration.
Further, under the court’s reasoning, I share concerns about difficulties prosecuting wrongdoing by an unscrupulous president motivated by political ambition, power or money.
For example, the court explicitly stated that in deciding which actions are official or unofficial, a court may not inquire into a president’s motives. Motive and intent are fundamental building blocks in a normal criminal prosecution. Also, the court held that in determining whether an act is unofficial, it is not enough that a president has allegedly violated a generally applicable law.
I respectfully question this aspect of the decision. The court understandably does not want to inquire into, or second guess, the motivation behind a presidential decision. But this limitation would appear to allow, for example, a president to offer a pardon, a clear exercise of constitutional power, in exchange for money. Such an act would be morally wrong but potentially difficult to prosecute. And unfortunately, as we have seen in the case of former President Trump, the possibility of impeachment and removal is unlikely to serve as a deterrent.
It is little wonder that some legal commentators believe this ruling allows a president — in particular Donald Trump — to escape accountability for criminal wrongdoing.
Applying the court’s reasoning, it is now clear that character and integrity will be as important as the wisdom, judgment and vision of our presidents. The job of American voters just became more important and more difficult.
Fortunately, the overwhelming majority of our presidents, while not perfect, have been men of integrity and courage. They and their successors, as the court agreed, do deserve protection from criminal prosecution for exercising core constitutional duties and official decisions, especially when acting on the advice of the U.S. attorney general, the counsel to the president and other senior administration lawyers.
Ironically, in the context of this prosecution of former President Trump, President Biden will be afforded the added protections under this decision should he fail to be reelected this November. These protections will become even more important in light of former President Trump’s public promise of retribution against his political enemies should he be reelected.
We should not forget that the Supreme Court ruled that immunity is presumptive for official acts, and thus, not absolute given the circumstances. It will take some time for the courts to settle on the appropriate scope of official acts.
I am fairly confident this uncertainty will have little effect on the decision-making of future presidents — assuming we the people have chosen wisely.
There is still hope and reason to believe we remain a nation of laws. The Constitution, Congress, the states and the courts still have a role to play in checking a runaway executive. The American people have had, and will continue to have, the power to punish any candidate or political party on Election Day who makes or supports decisions for reasons other than the best interests of the American people and of justice — and each should not be afraid to exercise that power.
The president must always be accountable for his decisions and his actions.
Alberto R. Gonzales is the former U.S. attorney general and counsel to the president in the George W. Bush administration.