Presidential Immunity: Sotomayor’s Spirited Dissent

The topic du jour in the pundit class this week revolves around whether President Biden will drop out of the race or stay in. It’s tempting, then, to make this newsletter about that question. The problem is that the analysis here is deeply conjectural. The decision on whether or not to drop out comes down to speculation regarding one man’s thoughts. While data is great for aggregated decision, it isn’t as useful for such personal one-off choices. My sense is that the president’s polling position hasn’t deteriorated enough to force him out of the race, and that is enough to keep him in if he so chooses. It’s also clear that time is his ally. Early voting in Pennsylvania starts in just 70 days. 

Instead, we’ll focus on the other hot topic in Washington, D.C.: presidential immunity. In particular, we’ll focus on one hypothetical raised in Justice Sonia Sotomayor’s opinion in order to illustrate a broader point.

To recap, on the last day of its term, the U.S. Supreme Court held that presidents were entitled to immunity for exercising their inherent constitutional authority, were not entitled to immunity when they were acting “unofficially,” and were entitled to either full or “presumptive” immunity in the grey areas (or as Justice Robert Jackson put it, the “zone of twilight”).

Justice Sotomayor’s spirited dissent contains a parade of hypotheticals illustrating the dangers of such immunity. The most extreme one has garnered much of the attention: What if a president were to authorize Seal Team Six to assassinate a political opponent?

It seems clear that such actions would fall outside his official acts, but instead, let’s focus on a different hypothetical to illustrate the dangers of not allowing for presidential immunity. Sotomayor references a situation where, perhaps, a president was bribed to grant a pardon.  Wouldn’t he be immune?

This example is not entirely hypothetical. At the end of his second term, President Clinton granted the customary glut of presidential pardons, a power expressly granted to the President by Article II of the Constitution. Tucked away were a number of highly controversial pardons. The top of the list, though, included Susan McDougal, who had served time for multiple contempt citations for refusing to testify against Clinton in the Whitewater scandal, and Marc Rich, a fugitive financier who was also a major Democratic donor. The latter, in particular, outraged several Democrats who had generally defended the president.

These two pardons, in particular, raised the obvious prospect of a quid pro quo: that Rich had been pardoned specifically because of his donations to the Democratic Party. Likewise, McDougal’s pardon was viewed by many as a reward for refusing to hurt the president’s prospects against a major investigation.

I don’t want to rehash all this. Instead, let’s consider the implications of Justice Sotomayor’s dissent. Let’s imagine that Clinton was prosecuted for his midnight pardons and that a jury was convinced that Rich’s donations functioned as a bribe. What does the next president do when confronted with a prospect for pardoning someone who had been a smaller donor? Or someone whose parents had been donors? What about someone whose pardon was offered because it enhances their political prospects? Or their spouse’s?  

This is the majority opinion’s concern, and it is not a light one. Allowing prosecutions for acts tied to a president’s constitutional authority risks weakening that constitutional authority to the point where it withers on the vine. To say nothing of subsidiary questions: The president certainly should be able to ask Department of Justice/Office of Legal Counsel attorneys for their advice about whether a pardon risks a bribery charge without risking a criminal conviction for themselves or for the attorney – this is what attorneys are for!

That’s not to say criticisms or concerns about the immunity decision are unwarranted. It is a broad ruling, and the decision to exclude all evidence related to the president’s official powers from being introduced, even in a collateral crime, is particularly far-reaching (Justice Amy Coney Barrett didn’t join this portion of the majority). But the questions with which the justices grappled were not easy ones, and the consequences of a failure to find immunity were potentially as far reaching and catastrophic as the consequences of finding immunity.