Joe Biden Kicks a Gift Horse in the Teeth

If he’s right about Donald Trump’s plans for “revenge and retribution”, the President will be grateful for immunity.

Repetitious emails from the Biden Campaign warn that a second Donald Trump Presidency, should it come to pass, will be devoted to “revenge and retribution”. Maybe that’s so. Joe Biden has every reason to believe it. He has, after all, pursued revenge and retribution against his predecessor. Turnabout in foul play is hardly unprecedented.

A Trump Department of Justice would certainly have a rich array of targets. While the ones that first spring to mind – peddling influence to foreign governments and businesses – took place while Joe was Vice President and likely are now beyond the statute of limitations, an ingenious prosecutor, a right-wing Jack Smith, will have no trouble finding criminal offenses in the President’s executive actions.

Consider, for instance, the student loan forgiveness schemes. In essence, they amount to embezzlement of public funds. The Supreme Court nixed the first heist attempt. The latest version is enmeshed in litigation. The federal fisc (that is, the taxpaying public) has already suffered losses owing to delays in borrowers’ repayments. Even if, as is quite likely, the revised version is held to be an unconstitutional expenditure of government funds without Congressional authorization, it will be hard to recover the losses. In any case, attempted embezzlement is just as much a crime as the completed offense.

Luckily for Joe Biden, although he may shiver with terror that a vengeful Trump might drone him, he need not worry about being indicted. The Supreme Court’s decision in Trump v. United States will protect him against criminal charges based on his official acts.

And there is more to the picture. Had Trump v. United States gone the other way, the Court would inevitably have had to overrule Nixon v. Fitzgerald, the 1982 decision in which it held that “a former President of the United States is entitled to absolute immunity from damages liability predicated on his official acts”.

The dissenters in Fitzgerald invoked the same parade of horribles as the dissenters in Trump. According to Justice White, the consequence of the majority’s view was, “A President, acting within the outer boundaries of what Presidents normally do, may, without liability, deliberately cause serious injury to any number of citizens even though he knows his conduct violates a statute or tramples on the constitutional rights of those who are injured.” That was, he asserted, “a reversion to the old notion that the King can do no wrong” and implied too that “the criminal laws of the United States are wholly inapplicable to the President”. Justice Sotomayor’s dissent in Trump picks up that rhetoric, but she labors to show that Justice White was in error. In her view, Presidents must be shielded from civil liability for their official acts, but there is no harm in turning federal and state prosecutors loose on them.

That dichotomy makes no discernible sense. Touchingly naïve, in light of the history of the Trump prosecutions and the ingenuity displayed by Jack Smith and Alvin Bragg in spinning “crimes” out of thin air, if not vacuum, is the Justice’s declaration that any fear that animosity against former Presidents “would expose [them] to trial and conviction is unfounded”.

In short, the opposite decision in Trump, i. e., the outcome that Mr. Biden says he desired, would have ineluctably doomed Fitzgerald. That would have opened the way for a parade of lawsuits against Mr. Biden by private citizens who have been harmed by “his conduct [that] violates a statute or tramples on the constitutional rights of those who are injured”: next of kin of the American soldiers and civilians who were killed because of the President’s disastrously negligent withdrawal from Afghanistan, landlords deprived of income during the illegal prolongation of the Covid rent moratorium, victims of alien criminals whom Biden’s deliberate erasure of the nation’s borders allowed into the country, women assaulted by males whom the federal government admitted to all-female spaces, and many more.

One might note that, notwithstanding Justice White’s dire predictions, the country has gone through seven Presidents since 1982, and only one has had any need for the immunity conferred by Nixon v. Fitzgerald.

That one doesn’t want the boon. Still, as he looks forward to his probable retirement from public life on or before January 20, 2025, he owes the Supreme Court a debt of gratitude.