Electing a virtuous president would make immunity irrelevant, writes a political philosopher

The Supreme Court’s decision granting presidents immunity from prosecution for his or her “Official acts” was greeted with concern by many legal scholars. Constitutional lawyers Michael Waldman described the choice as an “handbook for law-breaking presidents“, while law professor Michael Dorf noted that the ruling would apparently allow a president to openly sell pardons for bribes.

As a political philosopher Because my work deals with the query of how political institutions are protected, I’m concerned about these implications of the Court's decision. But I’m also concerned about the results of removing this immunity.

Complexity of presidential prosecution

The Supreme Court declared over 40 years ago that presidents aren’t civilly responsible for their official acts. In Nixon v. Fitzgerald, a case in 1982, the Court ruled that presidents can’t be sued for his or her official acts. The justices noted that allowing such suits “distract a president from his official duties”, to the detriment of the American state itself.

These concerns appear to apply equally to each criminal prosecution and civil liability. If responding to a lawsuit would make it harder for presidents to carry office, so could a criminal indictment.

In the current deeply biased In the political world, such concerns turn out to be much more essential. Whether one approves of Donald Trump's actions or not, it’s price noting that what is completed to 1 president might be done to others. Charges can sometimes reflect partisan considering; more often, they’re interpreted as politically motivatedand thereby fueled such partisanship.

These concerns are illustrated by some recent international examples. Many countries have recently prosecuted former heads of state and government for acts committed in office. This includes France, which recently convicted former President Nicolas Sarkozy for violating campaign finance rules; and Israel, which has brought charges against the present President Benjamin Netanyahu due to corruption allegations.

Such prosecutions had each positive and negative effects. The political scientist Victor Menaldo Notes that such prosecutions have sometimes led to cynicism in regards to the impartiality of the justice system; they’ve also Decline in public support for authoritarian rule – and in some cases they’ve even been utilized by persecuted politicians to bolster their political support. For example, politicians in Kenya and Brazil returned to power after being imprisoned.

In addition, Menaldo’s work has shown that such prosecutions sometimes increased political polarizationFearing future prosecutions, presidents have sometimes launched attacks on the independence of the judicial system – like Netanyahu since his own indictment.

It seems that any notion of presidential immunity comes with its own risks, so how can we predict in regards to the nature and limits of such immunity?

Presidents and the Demands of Virtue

Instead, one might first ask an issue: What binding force can a president should the norms and rules of the law, aside from the specter of criminal punishment?

A dominant theme in lots of political philosophies is the necessity for residents to act voluntarily to keep up norms and institutions that make up their political systemThe philosopher John Rawls, for instance, emphasized that societies can only exist if their residents accept an ethical duty to preserve and maintain the institutions of this society. The modern political philosopher Anna Stilz agrees with these thoughts and argues that anyone who deals with human rights should show Loyalty to political institutions without which human rights cannot exist.

The same goes for presidents. Time of AristotlePhilosophers have argued that political leaders must exhibit certain political virtues. The most vital of those is the willingness to prioritize public success over private gain. The good leader helped others to develop their potential – he didn’t simply pursue what was useful for itself.

Most presidents have had the chance to show such character traits. Richard Nixon, for instance, was pressured by his staff to Supreme Court ruling demanding that he release the recordings he had made. His aides essentially said that the President could insist on his authority as equal to that of the Supreme Courteven when this undermined the balance of power between the chief and judicial branches. Nixon disagreed along with his staff and preferred to resign somewhat than undermine the system itself.

But that does mean that for over 200 years, probably the most effective guarantee against lawbreaking has been the president's belief that the law – and the system that produces that law – needs to be taken seriously. Most presidents have tried, with various degrees of success, to preserve the norms and rules that constitute the political system itself.

The best defense against illegal presidential acts could also be to elect presidents who’re virtuous enough to refrain from such acts or to withstand the temptation to commit such acts.