The Civics Project column: Does immunity apply to former presidents? | Opinion

Q. What is presidential immunity, and does it apply to former presidents?

A.Presidential immunity is hard to define and understand, as it is as a concept still being specified and defined. It is currently the subject of litigation in the federal courts, over the criminal prosecution of former President Donald Trump. The U.S. Constitution does not mention presidential immunity. However, it has been considered and applied, at least in part, by the courts.

The concept is derived from the idea of the “separation of powers.” If there are to be co-equal branches of government, then one branch cannot have plenary authority over another branch. The judicial branch cannot be above the executive branch or the President. For example, allowing criminal prosecutions of Presidents might prevent a President from performing their duties and thus thwart the executive functions of government. If a President can be prosecuted for acts in office, it may make it difficult for them to exercise the powers of the office.

The argument against presidential immunity is founded on the concept of the rule of law. The idea that no person should be or can be above the law in a fair and democratic system. For justice to have meaning, then all Americans need to be subject to the same laws and process. Presidents who break the law should be subject to the same procedure and accountability as any American. If a president cannot be prosecuted for crimes, what would prevent a president from selling pardons or using their office to commit crimes?

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Historically, the Supreme Court has tried to balance the importance of no one being above the law while recognizing the need for the executive to be free to exercise their authority. In practice, this can be complicated. Are presidents immune from subpoenas? Can they be prosecuted for crimes committed before or after they took office? Are they subject to civil penalties or torts? The courts have slowly worked their way through some of these issues as they have arisen.

Presidents can be sued civilly for actions they took prior to becoming president. This happened to President Bill Clinton while in office. While presidents have voluntarily complied with document requests, no sitting president has ever been compelled to testify at a trial. However, presidents have sat for depositions and given recorded testimony. When Bill Clinton was subpoenaed by Kenneth Starr, after a negotiation, the testimony was given from the Whitehouse over a video feed and the subpoena was withdrawn.

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Sitting presidents are subject to greater, though not complete protections. The U.S. Justice Department reached the conclusion that while in office, a president could not be prosecuted for a crime as it would be unconstitutional to indict a sitting president. However, this interpretation does not protect a president once they leave office.

Though, in Nixon v. Fitzgerald, the Supreme Court held that a president would be immune to civil suits when the actions taken were official acts while in office.

As cases have been decided, it is clear that presidents have the most immunity while in office, and limited protections once they leave. While there are times that president is given special considerations, up until now, there is little support for a finding that presidents are immune from criminal prosecution after they leave office.

Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university. If you have a question about how American government and politics work, email him at kwagne15@fau.edu or reach him on Twitter/X @kevinwagnerphd.

This article originally appeared on Palm Beach Post: Civics explainer: Are former presidents immune from prosecution