Several retired four-star generals and admirals, as well as former cabinet officials, have filed an amicus brief with the Supreme Court arguing that granting immunity to former presidents for actions within the outer perimeter of their official duties would raise questions about the ability of the United States to peacefully transfer power from one administration to another, and thereby pose a grave risk to national security.
The "Parade of horribles" in the retired officials' brief assumes that a future president would instruct subordinate military officers to carry out illegal orders for which they, but not the president, would be criminally liable.
To analyze the pros and cons of immunity there is no need to speculate about what some future president might do.
Should the memo from DoJ authorizing the killing of an American citizen abroad without judicial due process immunize President Obama for violating the federal criminal statute that imposes criminal penalties for the extra territorial killing of an American citizen? Could a subsequent President, a member of the opposing political party, direct a new Attorney General to investigate whether the killing of the U.S. citizen by drone attack in Yemen violated federal criminal law? If an indictment is returned against the now former President for that killing, should President Obama be allowed to claim immunity or be forced to stand trial? Situation #2 President Biden revoked many of President Trump's Executive Orders addressing border security when he took office.
If the White House switches parties when President Biden leaves, should the new president's Attorney General seek an indictment against Biden for conspiring with the Secretary of Homeland Security to violate U.S. immigration laws by facilitating the illegal entry of millions of migrants into the United States? Or should those policy choices be protected by a cloak of immunity? Situation #3 Eager to deliver on a campaign promise, President Biden announced a policy to "Forgive" billions of dollars in student loan debt.
While the former Presidents have substantive defenses to the charges and the novel theories advanced in the indictments may be rejected by the courts or nullified by a jury, should the former presidents and the country be put through the spectacle of a criminal trial? One of the major attributes of immunity is that it avoids the trial in the first place.
Presidential immunity for actions within the outer perimeter of official duties allows a president to make difficult policy and operational decisions without concern for his personal liberty once he leaves office.
On the flip side, the existence of presidential immunity may provide unwarranted protection for the actions and decisions of a president who does not really have the best interests of the country at heart.
The Constitution specifically provides that upon conviction by the Senate in an impeachment trial the person impeached "Shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law." It is tempting to favor or disfavor presidential immunity in criminal cases depending upon the political or personal like or dislike one may have for the indicted former President.
If we are to be a nation of laws every former president should be entitled to presidential immunity for alleged criminal acts committed within the outer perimeter of official duties, or no former President should be so immune.
While immunity has been litigated in the context of civil claims, no former President has been indicted for criminal acts while in office, until now.
https://realclearwire.com/articles/2024/04/26/immunity_for_me_but_not_for_thee_1027716.html
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