Hamburg, NY (Special to Informed Comment; Feature) – Carl Schmitt wrote in Political Theology (1922) “sovereign is he who decides on the state of the exception.” What Schmitt meant in using the word “exception” is that in a specific historical timeframe a sovereign can suspend law in the context of a declared state of emergency. In so doing, he possesses absolute power over the judicial order and can decide what needs to be done, by ruling by decree. On April 25, 2024, the United States Supreme Court considered the case of Trump v. Anderson. All aspects of this case center on whether or not a former president has absolute immunity from prosecution for conduct considered official acts while in office.
Putting aside the chain of events leading to this case, it is, in essence about how politics prevails over law. The focus of the questioning by the various justices centered on Trump’s official acts as president. To what extent are certain acts within a president’s official duties and which ones could be subject to criminal prosecution, committed while in office once the president leaves office? The questions were an effort to distinguish between those official acts within a president’s legal authority that are spelled out in the U.S. Constitution and non-official or private acts, which could be prosecuted after a president leaves office.
The justices’ questions centered on ahistorical, hypothetical examples. This line of questioning began with Justice Thomas asking what defines acts which are part of a president’s official duties? Justice Kagan expressed skepticism in her response to Trump’s attorney questioning whether impeachment and conviction are prerequisites before a president could face criminal charges. Her hypothetical question was “Let’s say a president who ordered the military to stage a coup, he’s no longer president, he wasn’t impeached. He couldn’t be impeached but he ordered the military to stage a coup. And you’re saying that’s an official act?” A similar question was asked by Justice Sotomayer, but it was whether a president could decide “that his rival is a corrupt person and orders the military or orders someone to assassinate him, is that within his official acts from which he can get immunity?”
In another series of questions, the justices paid attention to what could be the difference between absolute and limited immunity. In addressing the issue of absolute immunity, Justice Jackson asked about the significance of Nixon’s pardon, which implies that a president could be prosecuted for his actions while in office. From her line of questioning, she appeared skeptical of a president having absolute immunity. Based on the line of questioning from the conservative majority on the Court, there was a willingness to entertain some form of immunity. In particular, Justice Alito expressed his concern over the danger of an incumbent president who lost a reelection be in as being put in a “peculiarly precarious position,” at the mercy of a prosecution by the incoming presidential administration. It needs to be stated that Alito’s concern is at odds with the historical record.
It is in my view, quite surprising, not just that the justices are willing to overlook Trump’s actions while in office, but most importantly that they ignore what the historical record tells us about the question of presidential immunity. This is where Schmitt’s concept of sovereignty is relevant. Schmitt’s insight appears in his theoretical construction of how politics exercised by a sovereign prevails over law. What his theory of the sovereign tells us is how presidents over time have been immune from prosecution. This immunity is evident in what are obvious violations of national and international law. So while the justices with their hypothetical questions appear to wrestle with the concept of immunity for presidents, historical examples demonstrate the matter of presidential immunity is settled. With the exception of the Nixon administration, presidents have been immune from prosecution.
That is because presidents have acted in such a manner that their political actions as sovereigns prevail over law over time. How so? A representative historical samples indicates that presidents have consistently violated national and international legal norms. One way to sidestep law is to declare a state of national emergency. This option fits into Schmitt’s reference to a sovereign deciding on the exception. For example, President Lincoln suspended habeas corpus during the Civil War. President Wilson clearly violated key provisions of the first amendment prior to and during World War I, with the support of Congress, enacting legislation that led to the passage of the Alien and Sedition Acts and the Espionage Act. These measures, in essence, made first amendment rights illegal.
During World War II, there was another political exception to the rule of law, with the confinement of Japanese Americans. In the 1950s, McCarthyism in the context of anti-Communist hysteria, undermined what are supposed to be civil liberties protections. Presidents Johnson and Nixon and Hoover, head of the FBI, made use of Cointelpro and undermined civil liberties while the Church Committee hearings exposed w the illegal actions of the Nixon administration and previous administrations. One significant result was a reform known as the Foreign Intelligence Surveillance Act (FISA), a noble effort to place legal restraints on how presidents made use of illegal surveillance, and yet over time the FISA courts led to illegal acts being ruled as legal.
Consider the response of the Bush administration to the attacks of 9/11. Under the guise of a “war on terrorism,” and given legal cover under John Yoo’s Office of Legal Counsel ruling, the U.S. government found the political means to torture, a clear violation of the Torture Convention, to which the U.S. was a signatory. There is ample evidence of torture practiced in Abu Ghraib and Guantanamo Bay. The question this: were any officials, including former President Bush, subjected to prosecution? The answer is no. In fact, President Obama wanted to move forward and not consider legal remedies, such as prosecution.
These examples point to the use of politics by a sovereign in a time of a declared emergency that serve to justify the sidestepping of the law, eliminating any potential for prosecution. Previous presidents have justified putting aside any possible legal restraints on the exercise of power by declaring states of emergency in either peacetime or wartime. Whatever the Supreme Court decides, presidents in the past have been able to make use of Schmitt’s exception to discard legal-constitutional limits so that presidents can act outside the law by justifying either a real or manufactured emergency and in so doing, become immune from prosecution.
What is unique is that Trump’s attorneys have requested that the Court rule to normalize immunity without any justification in relation to a declared state of emergency. If the Court rules to provide some form of immunity for Trump, it will be realizing Schmitt’s exception, which allows presidents to be completely above the law in all circumstances, acting, in essence, as fascist dictators.
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Featured image: “Donald I,” Digital, Dream/ Dreamworld v. 3, IbisPaint, by Juan Cole, 2024
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