A frightening thought experiment: A murderous president with criminal immunity

In Trump v. United States, the Supreme Court did more than create criminal immunity for presidents. By defining a sacred zone of protection from criminal oversight for core presidential powers articulated in the Constitution, it also vastly expanded the dangers of a future criminal presidency.

Tucked among those core powers, Chief Justice John Roberts wrote for the majority, is the president’s power to grant “reprieves and pardons for offenses against the United States” — a presidential duty he characterized as having “unrivaled gravity and breath.” Roberts’s broad articulation of the pardon power is significant. Without it, a president’s ability to use the powers of the Oval Office to commit crimes with impunity might not work.

The majority’s distinction between official and unofficial acts has triggered broad public debate over how much criminal liability remains for presidents. But coupled with the pardon power, the common-sense answer is that there is none.

Under the decision, official acts get immunity, and unofficial acts do not. So imagine a president who pulls out a pistol from his personal belongings and shoots a person he dislikes. Under the majority’s reasoning, that would be an unofficial act, so he could be prosecuted for murder after leaving office.

No president would be so foolish as to do such a thing. He’d use his official powers to do it instead.

Imagine the same vindictive killing — one that’s concededly motivated by pure personal malice, with no bearing on the broader interests of the American public. This time, rather than use his personal handgun, the president directs a federal law enforcement officer to commit the murder for him with an official federal firearm. Under the majority’s reasoning, the Constitution would now forbid any legal consequences attaching to the president for having directed the same murder — even after he becomes a private citizen.

Yet as a practical matter, that murder can be carried out only if the law enforcement officer abides by the president’s directive. If she does, and is later prosecuted, the officer will not get immunity because she is not the president.

So the officer must make a choice — either do the criminal bidding of the president, refuse and lose her job or face the wrath of a criminally-minded president who might persuade another law enforcement officer to silence her. With no protection from a criminal indictment, she might say no, resign and go public with her story in order to protect herself from retaliation. (This hypothetical sets aside for the sake of argument the threat of state prosecutions.)

Enter the pardon power. Armed with the language of the majority’s opinion in Trump v. U.S., such a president could promise the law enforcement officer a pardon, and perhaps a monetary bribe, to incentivize her to murder his rival under the guise of engaging in federal law enforcement activity within the president’s official power.

Could this scheme work? The better answer, under the foundational structure of the Constitution, is “no.” Ours is a system of laws. The Revolutionary War was fought to escape the monarchy of King George III.

Roberts’s opinion prompts the grave possibility that the answer could one day be “yes.”

Like much of the Constitution, the language establishing the pardon power is vague. It doesn’t say, for example, whether “offenses” under Article II’s pardon power means a possible crime, a charged crime or a criminal conviction.

Arguably, under the previous hypothetical, the president’s promise of a pardon would mean nothing until the crime is actually committed. It turns out that in an 1866 case called Ex parte Garland, the Supreme Court stated that pardons of a federal offense “may be extended at any time after its commission.” So for the president’s murder scheme to work, the law enforcement officer would have to accept the risk that the president might not follow through on his promise of a pardon. A pardon issued for hypothetical crimes is meaningless (so much for the nearly universal adage that presidential pardons have no limits whatsoever).

Now assume further that the law enforcement officer takes the chance and secures the pardon. Under the recent immunity ruling, evidence of the “official act” of the president’s pardon is now shielded, too. Without access to evidence bearing on how the president exercised his official power, the public might never even learn of the murder.

Roberts also took pains to point out that “after the Watergate tapes revealed President Nixon’s misuse of official power to obstruct the Federal Bureau of Investigation’s investigation of the Watergate burglary, President Ford pardoned Nixon.” Ford’s pardon occurred before any charges were brought against Nixon. So although the Constitution does not specify whether an actual charge is a prerequisite to a pardon, the Nixon pardon arguably operates as historical precedent condoning pardons that preempt the criminal justice system altogether. The law enforcement officer who accepts a promise of a pardon can thus rest assured that history will likely insulate her from the whiff of an indictment.

The combination of presidential immunity and preemptive pardons becomes downright terrifying when the hypothetical is expanded to dozens, scores or even hundreds of federal law enforcement and military personnel. Imagine a criminal president who takes office and populates his cabinet and the lower-level executive ranks with people willing to engage in crimes in exchange for pardons and other perks. Under the Supreme Court’s stunning immunity opinion, the public would be largely helpless to respond, except by the unrealistic specter of impeachment.

Perhaps this picture is too unrealistic and far-fetched to even worry about. The Supreme Court majority sidestepped the possibility that such a man will make it one day into the Oval Office.

For now, however, without any threat of criminal or civil liability looming over future presidents, the only thing standing in the way of an Oval Office crime spree is personal integrity — or his subordinates’ refusals to carry out his orders.

Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September.