The U.S. White House.
Presidential Immunity: History and Background
Presidential immunity is the long-standing idea that the president of the United States has exemption from liability or legal proceedings for acts related to the duties of presidential office. Contrary to popular belief, presidential immunity is not explicitly enumerated in the Constitution; only sitting members of Congress are explicitly granted judicial immunity through the Constitution’s Speech or Debate Clause. Rather, the concept of presidential immunity has arisen through the Department of Justice’s longstanding policy against prosecuting presidents in office and the Supreme Court’s interpretation of Article II, which has developed through a number of Supreme Court cases dating back to 1867.
These cases are as follows:
There are two important distinctions to make in examining these cases and their holdings. The first is between a civil suit and a criminal prosecution. Historically, presidential immunity has only been extended to civil suits. However, Trump’s recent Supreme Court case has now sparked a debate over the potential validity of criminal immunity. The second distinction is between an official and an unofficial, or private, act. An official act is an action taken within the scope of the president’s powers as outlined by Article II of the Constitution. All other actions undertaken by a president, even those which occurred during their term, are considered private acts. Much of the controversy around Trump’s claims of immunity arises from uncertainty as to whether his actions should be considered official or private.
Sign up for The Fulcrum newsletter
Arguments in Favor of Presidential Immunity
One argument in favor of presidential immunity is that it prevents retaliatory and politically biased prosecutions against presidents. Without established immunity, politically biased prosecutors could unfairly target presidents for arbitrary reasons once they leave office. For example, most U.S. presidents are accused of insufficiently enforcing a federal law at least once during their term. Most of the time, these accusations go nowhere. However, without the privilege of presidential immunity, these accusations could turn into prosecutions by their political opponents.
This contributes to another popular argument in favor of immunity — that it protects the ability of the executive branch to function effectively. Proponents argue that presidential immunity allows presidents to freely make decisions based on the public interest, rather than choosing a less optimal but “safer” option to avoid future prosecution. This protects the independence of the executive branch by giving the president free reign to exercise their powers and perform their duties without fear of the courts. Supporters of presidential immunity claim that it maintains the separation of powers between the three branches of government, allowing the president to act without excessive oversight from other branches or parties.
Arguments Against Presidential Immunity
Critics of presidential immunity, especially as defined in Trump v. United States, claim that it compromises presidential accountability. They state that it translates to an absence of legal consequences for the executive, and thus eliminates deterrents to breaking the law. President Joe Biden, a prominent critic of expanded presidential immunity, points to Trump’s alleged incitement of the January 6 attack as an example of something future presidents could do without legal consequences. Opponents also believe that expanded immunity empowers presidents to operate without oversight and increases the risk of corruption and abuse by shielding presidents from legal scrutiny.
Opponents further argue that expanded presidential immunity weakens the American system of checks and balances. They claim that it eliminates a key check on executive power. Critics say that executive power has already grown out of proportion in relation to the other two branches, as seen in the increased use of executive orders in recent presidencies. They believe that expanded immunity only worsens that imbalance by diminishing the judicial branch’s ability to hold the executive branch accountable.
Finally, critics of expanded immunity believe that it threatens democratic rule of law by placing the president above the laws that all citizens must obey. Under presidential immunity, they argue, the law is not equally applied to all. Some fear that this open exemption for the executive will cause citizens to lose faith in their ability to hold elected officials accountable, weakening collective faith in the democratic process. Opponents also believe that expanded immunity has already allowed Trump to get away with anti-democratic behavior, such as attempting to overturn the 2020 election. They claim that protecting actions such as these is a threat to American democracy.
Conclusion
In summary, the state of presidential immunity has changed over time due to various Supreme Court holdings. Those in favor of presidential immunity argue that it prevents retaliatory prosecutions and protects the ability of the executive branch to function. Those in opposition to the recent definition of presidential immunity argue that it compromises executive accountability, weakens checks and balances, and threatens the democratic rule of law.
Given the Trump v. United States decision and Donald Trump’s recent reelection, the debate around presidential immunity is more relevant than ever. Due to his election as president, the cases against Trump will likely end, and it is improbable that we will see how far presidential immunity extends under the court’s 2024 decision. Trump’s election brings a new concern for critics, who believe that Trump may be more willing to stretch the law than he was during his first term due to the expanded immunity now afforded to presidents.
However, expanded presidential immunity is not necessarily permanent. President Biden recently proposed a No President is Above the Law amendment, which would eliminate immunity for crimes a former president committed while in office. This is unlikely to pass in the next few years due to a Republican-majority Congress, but it does raise questions about the future of criminal immunity for presidents in administrations to come.
Understanding the Debate on Presidential Immunity was originally published by The Alliance for Citizen Engagement and is shared with permission. Kailey Emmons is a sophomore at the University of California, Los Angeles, where she is currently pursuing a double major in Political Science and Biology.
With Trump’s return to the White House, we once again bear daily witness to a spectacle that could be described as entertaining, were it only a TV series. But Trump’s unprecedented assault on our democratic norms and institutions is not only very real but represents the gravest peril our democratic republic has confronted in the last 80 years.
Trump’s gradual consolidation of power and authoritarian proclivities, reminiscent of an earlier era, are very frightening on their own account. But it is his uncanny ability to control the narrative that empowers him to shred our nation’s fabric while proceeding with impunity. His actions not only threaten the very republic that he now leads but overturn the entire post-WWII world order, which is now in chaos. Trump has ostensibly cast aside the governing principle with the U.N. Charter of Sovereignty. By suggesting on multiple occasions that the U.S. will “get Greenland one way or another,” and that Canada might become our 51st state, our neighbor to the north is now developing plans to protect itself from what it views as the enemy across the border.
So, how did we get here?
I originally began researching this very question a few years back during the first Trump administration. My investigation culminated in a book,American Schism, which argues that we cannot comprehend today’s polarized political landscape without historical context. To understand our contemporary divisions and address how we might bridge them, we need to determine their source and appreciate their evolution over history. The book’s investigative tracing of the antecedents leads us back to our founding in the late 18th century when the original seeds were planted. In fact, today’s acrimonious split is largely derivative of that first American Schism, which arose during our founding.
Sign up for The Fulcrum newsletter
In this era, once the Revolutionary War was won, our founders faced the daunting task of governing the newly independent nation. The original Articles of Confederation formed by the 13 former colonies were wholly incapable of addressing the urgent problems on the ground. It was in this context that the original American Schism first surfaced.
In this process of designing a blueprint, two distinctive governing visions vied for prominence. On one hand, founders like John Adams and Alexander Hamilton believed that the mechanisms of governance were enormously complicated and required the dedication of the best and the brightest. Pressing problems, such as addressing the war debt and establishing foreign allies, demanded pragmatic solutions with a broader purview that transcended the governing model of any of the individual states. The most educated leaders of the day deployed a range of competencies to forge intricately complex solutions with national scope. At the time, this governing model was referred to as an “aristocratic republic” and promulgated government by the elites.
In the other camp were Thomas Jefferson, Benjamin Franklin, and Thomas Paine, who believed that a representative democracy in which people selected delegates as advocates was the only sustainable republican form. Having emerged from the chains of the British crown, this group’s adherents were very circumspect of centralized power and favored governance closer to the dispersed communities and with strict limits on centralized power. Herein lie the origins of the deep distrust of elites and suspicion among what became known as “populists.”
The fight between these two factions became quite rancorous and drove the formation of the first political parties in our country: Hamilton’s Federalists and Jeffersonian Democratic-Republicans. Had it not been for the skill and foresight of James Madison, who bridged the two groups during its drafting, we might never have succeeded in ratifying the U.S. Constitution, the great compromise.
But, well past our founding period, these same tensions lingered and, in fact, have been omnipresent throughout much of history. Frequently, during our most difficult periods, this elite-populist tension festered below the surface. Underneath the partisan policy issues lie foundational yet unresolved questions: who should have the power to govern? To whom does the phrase “we, the people” vest governing authority?
As chronicled in the book, much of American history evinces a pendulum-like swing between the two conflicting answers to this core question. After 30 years of Federalist dominance, when much of the federal government foundation was originally established, the Jacksonian movement ushered in a new era of populism. Later, as the country industrialized in post-Civil War America, the elites in the Northeast—railroads, oil, banking—accumulated tremendous wealth in what became known as the Gilded Age. However, a bottom-up populist movement in the late 19th century, called the Farmers’ Alliance, confronted these powerful forces by educating and empowering independent farmers across the South and West. Despite limited initial success, reforms during the progressive era of the 1920s represented a pendulum swing back.
In the last decades of the 20th century, the U.S. establishment laid the foundation for a new globalist economy within which Americans could thrive. But today, the tables have turned once again as formidable populist forces strive to dismantle much of the very infrastructure built since the middle of the 20th century.
One of Trump’s great insights was to sense this latest reversal more than a decade ago. He astutely identified an accumulating mistrust in government amongst the working classes. Moreover, he adeptly weaponized this trend in his ultimately successful quest for political power. By demonizing coastal elites, Trump wielded a robust cleaver and split the elite-populist wedge wide open. By characterizing working-class rural Americans as “forgotten,” Trump reinforced their loss of faith in American institutions, a key theme of the MAGA era.
The globalist economic model underlying today’s schism
While the forces underlying the American Schism are omnipresent as mentioned above, their manifestation continues to evolve. In order to understand today’s vicissitudes, a 40-year perspective is valuable—within this timeframe the economic model we call “globalization” became dominant. Every economic model has winners and losers and, in this case, many Americans connected to this new global economy prospered. However, millions of Americans in huge industrial and rural swaths of the country suffered terribly as we outsourced large sections of economic activity.
The consequences of this vast variation in economic outcomes drove a major reorientation in the political landscape. For most of the 20th century, our partisan divisions were anchored in the post-WWII “left-right” continuum, the central determinants of which pertain to the degree of prescribed government intervention in the political economy. Laissez-faire movements on the right maintain that the capitalist model is the true driver of prosperity and are extremely circumspect of government interventions in the economy.
On the left side of the continuum, proponents maintain that governments must actively address the market failures that inevitably emerge in such an economy (e.g. providing public goods, addressing externalities, limiting monopolistic power). Others on the left raise fundamental questions of equity and endorse a stronger safety net for those members of society whom capitalism leaves behind. The social democratic models in Europe have largely embraced this approach.
Today, the left-right continuum is still quite relevant but it has been eclipsed by the elitist-populist clash described above. Millions of Americans who suffered the ravages left behind by globalization progressively became more distrustful of the policymakers on the coasts. To add insult to injury, the establishment of both political parties ignored their concerns and showed them nothing but disdain. The resulting social and ideological divisions represent yet another swing of the pendulum.
The Schism Beyond America
One of the interesting questions that arises from this analysis is the degree to which this elite-populist tension exists in other liberal societies. In 2014, Christophe Guilluy pennedLa France Périphérique and it proved to provide a prescient analysis of the polarization that has arisen in French society since the adoption of the globalist model. Guilluy describes how the schism’s fault lines are formed by those parts of France that have benefited from the global economy and those parts of France that have suffered under it. The explosion of the “gilets jaunes” movement in recent years in France is a clear manifestation of the model Guilluy describes, as is the Brexit movement, and the results of recent elections in Germany.
One recent and comprehensive analysis presents these trends as part of one overall movement. In 2019, Pippa Norris and Ronald Inglehart in “Cultural Backlash” clearly describe the interconnections across Western societies. They demonstrate how the political and social fault lines form a consistent pattern across geographies, albeit with regional differences. Yet, despite these differences, a common thread across all countries is a revival of authoritarianism and populism in the twenty-first century.
Moving forward
In the 2024 U.S. presidential election, the pent-up working-class rage toward the establishment erupted in a reckoning. Trump rallied his MAGA troops in cult-like fashion to “throw the bastards out,” and reclaim the White House, with promises to dismantle the elite set of institutions that have been built over decades.
Does this represent perhaps the apotheosis of the MAGA era here in the U.S.? Regardless of where we are in the cycle, we can only move forward if we look into the rearview mirror and see the complexity of the elite-populist schism in its historical context. What my analysis reveals is that, in fact, both the elite and populist models have made significant contributions to our republic. In fact, at times in our history, we deployed a “magic formula” for balancing these two conflicting visions and finding a middle ground. When deployed, this secret sauce allowed us to more adeptly navigate deep divisions and led to better outcomes.
This raises a key set of questions: What ingredients make up this formula? How did we successfully leverage elite expertise when required to solve complex problems, whilst also ensuring that egalitarian forces kept the elites in check? Tragically, what we observe in today’s environment is the grim reality that we have discarded reasoned historical analysis and abandoned the vital framework of compromise. As a society, we have yet to embrace the idea that history can act as a salve for our wounds if only we would apply it. To bestow our democratic republic to the next generation we must do better.
Seth David Radwell is the author of “American Schism: How the Two Enlightenments Hold the Secret to Healing our Nation” and serves on the Advisory Councils at Business for America, RepresentUs, and The Grand Bargain Project.This is the third entry in the American Schism 2025 Series.
A speakerphone locked in a cage.
On June 4, 2024, an op-ed I penned (“Project 2025 is a threat to democracy”) was published in The Fulcrum. It received over 74,000 views and landed as one of the top 10 most-read op-eds—out of 1,460—published in 2024.
The op-ed identified how the right-wing extremist Heritage Foundation think tank had prepared a 900-page blueprint of actions that the authors felt Donald Trump should implement—if elected—in the first 180 days of being America’s 47th president. Dozens of opinion articles were spun off from the op-ed by a multitude of cross-partisan freelance writers and published in The Fulcrum, identifying—very specifically—what Trump and his appointees would do by following the Heritage Foundation’s dictum of changing America from a pluralistic democracy to a form of democracy that, according to its policy blueprint, proposes “deleting the terms diversity, equity, and inclusion (DEI), plus gender equality, out of every federal rule, agency regulation, contract, grant, regulation and piece of legislation that exists.”
We’re about 1/3rd of the way through the Heritage Foundation’s 180-day blueprint and have witnessed 129 executive orders, resulting in 113 legal challenges (Litigation Tracker), which should come as no surprise to anyone who understands the principle of separation of powers in the Constitution.
Sign up for The Fulcrum newsletter
Rather than just claim that the Trump administration has authoritarian tendencies, I feel it is more worthwhile to explore the question more fully. Five books were cited in the June 4 op-ed to assist readers in better understanding how an authoritarian dictator acts and can—rather quickly—convert a democracy into a totalitarian and oppressive-ruled country. Four of the books were written by the contemporary authors Anne Applebaum, Barbara McQuade, Heather Cox Richardson, and Timothy Snyder. The other book was George Orwell’s dystopian novel “1984.”
You might like to know the #1 most banned book by right-wing agents is Orwell’s “1984,” which warned against autocracy’s reign of terror. After Donald Trump made unprovable and “alternative fact” statements in 2017, sales of “1984” soared 9,500 percent. After Trump’s 2024 election victory, “1984” sales went “soaring off the shelves” (Axios, Nov. 8).
In Orwell’s “1984,” Big Brother and his acolytes installed the practice of eliminating words, called ‘Newspeak.’ 'The Party’ was the name of the totalitarian government that used Newspeak to delete words, discourage free thought, limit people’s ability to think critically, and control its citizens.
Jump to 2025, and the term `Newspeak’ will now be applied to a portion of our 47th president’s administration. Despite Mr. Trump claiming to be the “champion of free speech,” The New York Times found that hundreds of words used in Trump 2.0 documents have disappeared on hundreds of federal document websites and more than 5,000 pages.
A partial list of words that Mr. Trump has eliminated from America’s lexicon includes advocacy, biologically female, Black, clean energy, climate science, cultural heritage, disability, discrimination, diversity, equal opportunity, equity, female, females, feminism, gender, hate speech, Hispanic minority, inclusion, Latinx, LGBTQ, mental health, minority, multicultural, Native American, pregnant person, race, sex, social justice, transgender, tribal, under-represented, victims, and women.
Notice what words are not on Trump’s banned list: male, man, men, and White.
Another example of Orwellianism in Trumpism exists...
In George Orwell’s “1984,” several citizens in the authoritarian superstate of Oceania work for the Ministry of Truth, whose job was to alter historical records to fit the needs of ‘The Party.’ On the sixth day of Trump’s 47th presidency, he ordered that “the U.S. Air Force will no longer teach its recruits about the Tuskegee Airmen, the more than 15,000 Blacks pilots (first Black aviators in the U.S. Army), mechanics, and cooks in the segregated Army of World War II.” Trump’s very own ‘Ministry of Truth’ is attempting to erase the history of active Black fighters from 1940 to 1952, who flew in over 15,000 sorties and destroyed more than 100 German aircraft.
Recall one of the words Mr. Trump has eliminated from U.S. documents: Black.
Orwell’s Big Brother also wanted to destroy the literature of Chaucer, Shakespeare, Milton, Bryon, etc., so he could control how people could think, how much they could believe, and what they could think about.
In a similar literature vein, Donald Trump has controlled what news agencies can work at the Pentagon; CNN, The Washington Post, The Hill, War Zone, NBC News, NPR, New York Times, and Politico have been kicked out (AP, Feb. 7). Four news agencies (i.e., Associated Press, Reuters, HuffPost, and Der Tagesspiegel) have been barred from attending Trump cabinet meetings. Americans are being controlled over what the media can report to us and, therefore, how much to think and what to think about.
Evidence is replete. Mr. Trump is not only following the Heritage Foundation’s right-wing playbook with his multitude of executive orders but many of the actions are employed by the fascist rulers and tenants of George Orwell’s “1984.”
Now is the time to act. Life often imitates art, and perhaps this is one of those circumstances, as the words of “1984” serve as a warning as to where the current trajectory of Democracy in America might result in.
Call your two Senators and U.S. Rep. (202-224-3121) to remind them that the First Amendment of the U.S. Constitution protects freedom of speech and freedom of the press and demand it is their job to put a stop to Trump’s 2.0 anti-free speech and anti-freedom of the press dystopian movement.
Blocks with letters on them, spelling out "Fake" or "Fact".
Truth matters. You wouldn’t know that from watching the president address Congress earlier this month. The assault on truth since January has been breathtaking. The removal of data from government websites, the elevation of science deniers to positions in charge of scientific policy, and the advancement of health policy that flies in the face of scientific evidence are only the tip of the iceberg. We are watching a disaster in the making: Our leaders are all falling in line with a program that prioritizes politics and power over American success. But, we ignore the truth at our own peril—reality has a way of getting our attention even if we look the other way.
As a philosophy professor, my discipline’s attention to truth has never seemed more relevant than today. Although, there may be disagreement about the ultimate nature of truth, even the most minimal theory agrees that truth requires alignment with the way the world is. It is neither negotiable nor unimportant. Devaluing the importance of truth is a fool’s game, and it is incompatible with American success. It makes us weak and vulnerable; epidemics, deaths, and unrest will follow.
What has made us so successful? Some point to our democratic system of government and the freedom that it has sustained. Some will pick out the scientific and technological advances that form the backbone of our economy, advances that have ranged from cures for diseases to the development of the automobile, the internet, and artificial intelligence. Also important is the elevation of the individual, and the individual rights enshrined in our constitution. And then there is our educational system, the envy of the world, at least until now. At the root of all that is best about America is a core value—truth.
Sign up for The Fulcrum newsletter
A functioning system of democracy requires trust: If those in power do not speak the truth there is no basis for trust, and if there is no basis for trust, we abdicate the ground for our freedom. People must trust that their votes will count, that their officials will perform their duties in the service of their nation and not for personal gain, and that the system of checks and balances will not be subverted. Indeed, our freedom is shored up by free speech laws that ensure transparency. As the visual metaphor suggests, transparency allows us to see the truth. The same can be said for a capitalist economy: once trust is lost in the system, once graft becomes rampant, and once the currency cannot be trusted to hold its value, the system collapses.
Science is the search for the truth about the natural world, and its success is predicated on following the facts where they lead. Not all truths are convenient, and some are downright frightening, but scientific facts cannot be massaged or legislated for our own purposes. It is only by recognizing the facts for what they are that we can make intelligent decisions about how to move forward, that we can build buildings that do not crumble, and medicines that work. Lying about the facts or erasing knowledge undermines science and our success.
The foundations of morality, whether religious or secular, also posit truth as a central value. The Ten Commandments clearly enjoin truth-telling: “Thou shalt not bear false witness against your neighbor.”
Rewriting history to mark Ukraine as the aggressor in the war that Russia instigated should be called out for what it is: a blatant example of bearing false witness, and on this view, a sin against God. But even those whose moral foundations are secular, recognize the centrality of truth to morality. For example, the development of moral character, the bedrock of Virtue Ethics, requires the consistent and deliberate exercise of truthful behavior until truth-telling becomes part of one’s moral fiber.
As Americans, we teach our children not to lie and tell them the story of George Washington and the cherry tree. Although apocryphal, the story illustrates the strong link between strength of character, commitment to truth, and American patriotism.
That’s ridiculous! You might say—isn’t truth a cudgel that the powerful wield to cement their interests?
This thinking might be where our present leaders go wrong, but to do so is to misunderstand the nature of truth, which depends on the way the world is, not what someone wants or asserts it to be. Truth is not opinion, nor is it mysterious or elusive. At its base is the simple notion of correspondence to the facts, and those facts can be empirically established and will exert their influence despite our wishes.
To be sure, sometimes the facts are complicated, and discerning them requires the expertise developed with training, which is why our educational system is fundamental to our success, and why scientific hypotheses are discussed in terms of degrees of certainty. But we should all be very clear: To assert falsehoods is to undermine all we stand for. To try to blur the lines between truth and lying is a common move in a fascist playbook. These exercises of power may often seem inconsequential, but make no mistake: they are aimed at destroying our values and ultimately our democracy.
Truth lies at the foundation of what has made America great, and every assault on truth eats away at that foundation. It is incumbent on all of us to stand up and decry every lie, to call out every act of censorship, to demand transparency, and to demand integrity from those who represent us. Once you give up on truth, you have given up on democracy.
