Immunity for actions in the executive branch of government is a long-standing tradition in democratic government.

Police officers have typically enjoyed immunity so long as their action is a colorable exercise of their authority. Likewise, officials in administrative agencies cannot be sued for their official actions – you can’t bring criminal charges against an FDA official on the grounds your daughter was denied a life-saving drug that the official refused to approve.

You can’t charge a governor with manslaughter on the grounds that there was a traffic accident because he neglected to close a highway during a snowstorm or that an ambulance was unable to reach a hospital because he neglected to re-open one.

The general rule, with limited exceptions, is that government officials acting in an official capacity are immune from criminal prosecution – even if their actions were mistaken or negligent.

This rule extends to the presidency. President Biden cannot be criminally prosecuted for his botched withdrawal from Afghanistan that resulted in the deaths of dozens of Americans and hundreds of Afghans. He cannot be prosecuted for refusing to enforce the immigration laws, thereby encouraging an invasion of illegal immigrants including drug dealers and murderers.

He cannot even be prosecuted for twisting or ignoring the law in support of his political allies.

The system is not powerless in these circumstances. We have the remedy of impeachment. That extreme remedy is seldom invoked, and that’s the way it should be. We also have the remedy of voting the bastards out.

The immunity rule is necessary. Without it, each time power shifts between parties – Democrat to Republican or the other way around – there would be a bloodbath. The newly empowered party would exact revenge on the newly out-of-power party. That’s what they used to do in the banana republics and in the Reign of Terror. Losing your seat could mean losing your head.

In America, we’ve lately seen hints of this natural tendency toward retribution against political enemies.

Trump won election in 2016 against all odds and against all the political establishment. In response, they began an unprecedented campaign of retribution even before they finally ousted him from office in the next election: Two bogus exercises of the extreme remedy of impeachment, a collusion of media and establishment lies about Russian collusion, a multiyear investigation that turned up nothing.

When the establishment finally regained power by beating Trump in 2020, they began criminally prosecuting him for his acts in office, timed to come to a head just before the next election where he hopes to reclaim that office.

One of those prosecutions is a joke, namely the Manhattan Project where a stupid political hack of a District Attorney hopes to gloriously nuke Trump’s campaign with a criminal charge that is as bogus as it is convoluted (which may well produce a jury conviction in ultra-Blue Manhattan, but will surely be overturned on appeal).

The more serious case is the one charging Trump with various vague infractions for what he did and failed to do on and around Jan. 6 before his term expired.

Although I voted for Trump twice, and probably will a third time, Trump’s actions then were deplorable. He should have asked the hooligans to stand down immediately.

Instead, he watched on TV as the protest morphed into, briefly, a riot and take-over of the storied place where the people’s representatives meet, debate and vote on legislation. And instead, he asked his Vice President to block the election outcome by refusing to perform a perfunctory act in connection with the Electoral College. 

Was Trump wrong? Was he foolish? Was he dangerous?

Yes, yes, and yes.

But was he outside his official capacity as President?

No. What he did and didn’t do was a colorable, if mistaken, foolish and dangerous, exercise of official discretion.

“No man is above the law,” preach the prosecutors/persecutors when they demand their pound of flesh.

That’s a catchy phrase. It’s often invoked in hypotheticals. For example, what if a president were to order the CIA to assassinate a political rival? What if the president were to shoplift an ice cream cone?

Those examples are easy. There’s no immunity because the act has nothing to do with official duties.

A more interesting example is, what if a president orders the assassination of a foreign leader – as Barack Obama ordered the assassination of Osama bin Laden?

Recall that bin Laden was unarmed. It was the middle of the night. It was in his home. He was shot in the head. His body was dumped at sea.

I personally think bin Laden deserved all that and more, but I can see his family’s objections that ordering the assassination of an unarmed non-combatant at his home in the middle of the night was outside the official duties of President Obama. An argument could be made (not a very good one, in my opinion) that the assassination was a war crime or even murder.

I contend that even if that act was indeed a war crime or even murder, it was not outside the official duties of President Obama.

The Supreme Court heard arguments on the immunity issue in the Trump case last week. A majority of the Court seemed to recognize that some presidential immunity is necessary in order for American government to function.

That much is easy. It’s easy to recognize that some presidential immunity is necessary. The hard task is to draw the line. The Court cannot be expected to draw thousands of lines to address thousands of different circumstances. A general rule is required.

I expect the general rule to be along the lines of “there’s immunity if the act is arguably within the scope of the office.” In Trump’s case, it was – at least arguably.

Glenn Beaton practiced law in the federal courts, including the Supreme Court.