Was the Supreme Court Wrong About Presidential Immunity?
Dec 13, 2024
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Elizabeth Price Foley, a constitutional law professor known for her expertise in separation of powers, and Glenn Greenwald, a Pulitzer Prize-winning journalist, engage in a lively debate over the Supreme Court's ruling on presidential immunity. Foley defends the necessity of immunity for executive functions, while Greenwald argues it creates a dangerous precedent. They explore historical examples, the implications of unchecked power, and the balance between accountability and presidential authority, shedding light on a crucial aspect of U.S. governance.
Foley argues that presidential immunity is crucial for executive effectiveness, citing concerns that legal distractions could undermine presidential duties.
Greenwald contends that such immunity positions the president above the law, potentially leading to systemic abuses of power and corruption.
The debate references historical precedents like Nixon v. Fitzgerald to illustrate differing views on executive power and accountability.
Audience engagement reveals a shift in perspectives, indicating the debate's effectiveness in challenging previously held opinions about presidential immunity.
Deep dives
Debate Overview and Participants
The episode presents a debate on whether presidential immunity for official acts is essential for the U.S. government's functioning, featuring law professor Elizabeth Price Foley defending the resolution and journalist Glenn Greenwald opposing it. Foley highlights her extensive background in constitutional law, while Greenwald brings a strong journalistic perspective, emphasizing his history with the Snowden revelations. The debate is moderated by Gene Epstein, who sets the stage and ensures engagement through voting before and after the discussion. The importance of this topic stems from its implications regarding accountability and the scope of presidential powers.
Arguments for Presidential Immunity
Elizabeth Price Foley argues that the Supreme Court's decision in Trump v. United States, which extends presidential immunity to criminal acts performed as part of official duties, is consistent with established legal precedents. She cites the Nixon v. Fitzgerald case, which highlighted the need for presidents to operate without the distraction of litigation arising from official actions. Foley emphasizes that allowing lawsuits against a president for legitimate official acts would undermine the executive branch's effectiveness and create a landscape of constant legal challenges known as lawfare. This immunity ensures that presidents can fulfill their duties without fear of being hindered by politically motivated prosecutions.
Opposition to Absolute Immunity
Glenn Greenwald counters that the elevation of presidential immunity creates an alarming precedent that places the president above the law. He emphasizes that all other public officials, including judges and members of Congress, can be held accountable for criminal acts, regardless of their official duties. According to Greenwald, this notion of absolute immunity enables blatant abuses of power and incentivizes corruption, ultimately detracting from democratic accountability. He argues that historical abuses of power, including those seen in executive actions post-9/11, illustrate the dangers of immune presidents acting without legal consequences.
Historical Context and Precedents
Throughout the debate, both speakers reference historical perspectives on executive power, particularly drawing from the founding fathers’ concerns about monarchy and abusive power. Foley asserts that the founders designed the Constitution deliberately to prevent endless litigations that could distract the presidency, thereby validating the extension of immunity to criminal acts. On the other hand, Greenwald warns that the founding principles aimed to ensure no one, including the president, should be above the law. They both explore previous instances like Watergate and the implications these decisions have on modern governance.
Practical Implications of Decisions
The discussion covers the practical implications of immunity on the functioning of the executive branch. Foley argues that a president must be able to operate with autonomy to make swift decisions without the chaining effect of potential civil or criminal lawsuits. Greenwald refutes this, asserting that fostering a culture of accountability is essential to democracy, and that presidents should not act with impunity, which could lead to systemic corruption. The invocation of terms such as 'good Samaritan laws' is used to suggest a framework for potential president accountability without stripping them of necessary discretion.
Debate Conclusion and Voting Results
As the debate concludes, participants engage with questions from the audience, addressing hypotheticals and historical examples regarding presidential authority and immunity. When the audience votes on the resolution, there is a noticeable shift in opinions from the initial vote, revealing a change in perspectives due to the arguments presented. Ultimately, Greenwald's position gains significantly more support, reflecting a consensus among some audience members that presidential immunity may hinder accountability. This shift exemplifies the dynamic and impactful nature of open debate on constitutional issues.
Future Implications and Final Thoughts
The episode highlights the ongoing conversation about the implications of presidential immunity on U.S. democracy and governance. Both Foley and Greenwald make compelling points regarding the balance between effective governance and accountability. The banter establishes that while some defenses of immunity might seem justifiable from a legal standpoint, the potential consequences on democratic integrity raise critical concerns. The lively debate illustrates that this topic will continue to be vital as society grapples with ensuring both effective leadership and lawful conduct from its highest office.
Did the Supreme Court err in its July 1 ruling in Trump v. United States that "the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority"? That was the subject of this month's Soho Forum debate. Law professor Elizabeth Price Foley and journalist Glenn Greenwald debated the resolution, "Presidential immunity for official acts is a key factor in the proper functioning of the U.S. government's executive branch."
Defending the resolution was Foley, a professor of law at Florida International University, where she teaches constitutional law and separation of powers. She has testified before Congress on numerous constitutional topics, and is the author of three books on constitutional law.
