20 MONTEREY COUNTY WEEKLY july 4-10, 2024 www.montereycountynow.comcom held that a New York State grand jury was entitled to subpoena a third party accounting firm regarding President Trump’s personal financial records as part of a criminal investigation into possible crimes. The current case, however, presents an issue never previously before this court because, as petitioner points out, no president before petitioner has ever been criminally prosecuted for official acts allegedly committed in office. The question is whether this court will decide the matter of criminal indictment of a former president for official capacity crimes in the same way it has decided the foregoing four immunity cases. Making a former president immune from criminal prosecution could make the presidency itself a profound threat to national security, as it would permit a president to use the great power of the office to further personal interests, such as securing reelection or attempting to avoid accountability for criminal abuse of power. As national security professionals, we emphatically reject the sweeping proposition that all U.S. presidents enjoy legal immunity from criminal prosecution to the “outer perimeter” of their official duties. It is no exaggeration to say that this proposition is potentially the most dangerous that has ever been advanced in a court of law by any U.S. official. Indeed, it is a proposition that would convert the presidency from the greatest protector of the nation to its single greatest threat. It is also a profoundly unethical proposal. To establish the president as singularly unfettered by the same generally applicable criminal laws that apply to every other member of society erects an example of lawlessness among the nation’s highest officials. Such lawlessness erodes rule of law values where such values are most needed. That the president of the United States is subject to the law is clear from the Constitution itself. The Supremacy Clause of the U.S. Constitution, Article VI, provides: “This Constitution, and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land,” making clear that it is the law, not the president, that is supreme. The constitutional supremacy of the law, not the president or any other person, is consistent with the intent of the Framers. As James Iredell explained in his 1788 speech to the North Carolina convention ratifying the Constitution, it was not necessary for the United States to have a privy council imposing constraints on the exercise of presidential power, as it was to constrain the King in Great Britain. Unlike the King, the President is not above the law: “Under our Constitution we are much happier…No man has an authority to injure another with impunity. No man is better than his fellow-citizens, nor can pretend to any superiority over the meanest man in the country. If the president does a single act by which the people are prejudiced, he is punishable himself, and no other man merely to screen him. If he commits any misdemeanor in office, he is impeachable, removable from office, and incapacitated to hold any office of honor, trust or profit. If he commits any crime, he is punishable by the laws of his country, and in capital cases may be deprived of his life.” One of the most serious risks of presidential immunity for official capacity acts arises from the potential that the president may abuse his Commander-in-Chief authority, thereby placing the integrity of the armed forces at risk. Imagine a president determined to use the U.S. military to commit crimes against political opponents; to constrain and control domestic civilian populations in violation of federal criminal law; to coerce foreign nations into supporting his bid for reelection by engaging in criminally proscribed corrupt practices; to falsify domestic election results in an effort to criminally defraud the United States; and to coerce the legislative and judicial branches of government into supporting his friends and punishing his enemies. What would become of impeachment as a check and balance if a president could order SEAL Team Six to intimidate members of Congress and then enjoy immunity unless he was impeached by a majority of the House and convicted by two-thirds of the Senate? Who in Congress would even dare to try to impeach the president under such circumstances? Likewise, the judiciary could be cowed into submission and the independence of this very court threatened by fear of violence inflicted on its members. The rule of law will be threatened unless federal courts have protection against intimidation by a criminal president in command of SEAL Team Six or any other unit of the U.S. Armed Forces. The risk of a president who commits crimes to avoid the transition of power is one of the gravest our democracy may face. The president might deploy troops to control polls, for example. A criminal president could use military force to coerce voters, to coerce state officials counting ballots, or to obstruct the official proceedings in which state legislatures and Congress certify results of elections. Moreover, a president who has committed crimes while in office has incentive to remain in office to deter or entirely thwart the moment at which he is brought to justice. The risk to democracy, and hence to U.S. national security, is gravest from a sitting president who seeks to undermine the transfer of power, and even greater from a president already under scrutiny for criminal acts. By removing liability for the criminal misuse of official capacity acts, this court could be eliminating the last protection from dictatorship cognized by our constitutional system. Presidential immunity for official capacity crimes would create an untenable dilemma for every member of the military chain of command ordered to execute an order, particularly if officers disagree as to its legality under criminal law. Because any order issued by a president carries with it a presumption of legality and exerts a powerful gravitational force on its recipients, the risk of such disparate interpretations of the duty to obey— even if the order appears on its face to violate federal criminal law—would be The risk of a president who commits crimes to avoid the transition of power is one of the gravest our democracy may face. “Despite having lost, the defendant was determined to remain in power,” according to the 2023 indictment against Donald Trump. The former president repeated false claims to “create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
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