At Thursday’s Supreme Court hearing on Trump’s immunity claim, Justice Alito worried that prosecuting former presidents would create an incentive for incumbent presidents to subvert democracy to remain in office and avoid prosecution (Transcript, p. 110-11): JUSTICE ALITO: All right. Let me end –end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is –is the incumbent. MR. DREEBEN: Of course. JUSTICE ALITO: All right. Now, if a –an incumbent who loses a
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At Thursday’s Supreme Court hearing on Trump’s immunity claim, Justice Alito worried that prosecuting former presidents would create an incentive for incumbent presidents to subvert democracy to remain in office and avoid prosecution (Transcript, p. 110-11):
JUSTICE ALITO: All right. Let me end –end with just a question about what is required for the functioning of a stable democratic society, which is something that we all want. I’m sure you would agree with me that a stable democratic society requires that a candidate who loses an election, even a close one, even a hotly contested one, leave office peacefully if that candidate is –is the incumbent.
MR. DREEBEN: Of course.
JUSTICE ALITO: All right. Now, if a –an incumbent who loses a very close, hotly contested election knows that a real possibility after leaving office is not that the president is going to be able to go off into a peaceful retirement but that the president may be criminally prosecuted by a bitter political opponent, will that not lead us into a cycle that destabilizes the functioning of our country as a democracy?
Commentators have been largely dismissive of Alito’s concerns. I believe his worry is misplaced, but it deserves careful consideration.
The oral argument highlights two basic downsides to subjecting the president to criminal liability for official acts. The first is that the threat of criminal liability will lead the president to be overly cautious in performing his constitutional duties (the president will be “chilled” or lack “energy”). The second is the concern Alito flags in the quote above – that fear of criminal liability will lead an incumbent president to subvert democracy to avoid prosecution at the hands of a rival after the end of his or her term.
To evaluate these concerns, it is helpful to distinguish official acts that are unrelated to election processes (“policy acts”) and official acts that relate to the conduct of elections (“election acts”). Liability for policy acts can create an incentive for election subversion. A president who may have violated a law in the conduct of his or her official duties will have an incentive to subvert election procedures to remain in office and avoid prosecution. Immunity for policy acts reduces this incentive for election subversion. This is a potential benefit of immunity. How large this benefit is will depend on several factors, notably how reliable the “layers of protection” are that protect ex-presidents from overly zealous or malicious prosecution. Protections include prosecutorial professionalism, grand juries, and the courts. (Alito seems skeptical of the effectiveness of these protections, see the discussion in the transcript beginning on page 100.) Immunity also avoids chilling desirable policy actions, which is a benefit, but it allows presidents to act in harmful ways that would otherwise be prohibited by law.
Next consider liability for illegal election acts, specifically acts that are aimed at election subversion, which Trump is accused of. In this case, unlike in the case of illegal policy acts, liability unequivocally reduces the incentive for subversion. It also seems highly unlikely that liability for illegal acts of election subversion will inadvertently chill desirable election acts.
The upshot is that to prevent election subversion we need to rely on courts and other political actors to block subversion ex ante, and on the fear of criminal liability ex post. These protections may sometimes fail, but the alternative – a regime of immunity for election subversion – is unequivocally worse. If the Supreme Court is worried about chilling effects on policy acts, then it should simply carve out an exception for election subversion and leave questions about criminal liability for policy acts for another day.