Unpacking Presidential Immunity and “Official Acts”

There is much to unpack from the recent SCOTUS 6-3 ruling affirming presidential immunity for official acts, as many areas are open to subjective interpretation of what constitutes an official act. 18 U.S. Code § 201 defines an official act as “any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official’s official capacity, or such official’s place of trust or profit.”

What are presidential official acts? Article II of the Constitution establishes the scope of the President’s duties and the role of the Executive Branch but not entirely the depth. To that end, the President is entrusted to execute the laws established by Congress faithfully and legally and act and establish policies he (or she, if that day comes) believes are in the state’s best interest. That last line is what brings us to this controversy today.

The case brought before the SCOTUS was unique, questioning whether President Trump’s actions leading up to and after January 6, 2021, were official or unofficial. This distinction, part of his official duties as the sitting President or in his own self-interest, is a significant grey area open to broad interpretation. As the incumbent candidate, Trump was legally obligated to question and call to investigate dubious election integrity issues and results in the 2020 presidential election. However, he would personally gain should the results of his inquiry be in his favor. The special prosecutor in D.C. and the Fulton County, Georgia, DA will have to prove beyond a reasonable doubt that his acts surrounding the 2020 election results were in the latter category and not the former.

However, the reactions from individuals ideologically opposed to a second Trump presidency are extremely concerning in the wake of this ruling. Politicians, pundits, and everyday Americans have posted on social media and deliberated throughout legacy media outlets that the sitting president should take some excessive and radical actions against Trump, SCOTUS justices, and those that would obliterate the very framework of the republic. These “suggestions” include assassination/extrajudicial killings, drone strikes, military coups, and suspending the election, to name but a few of the most common.

The justifiable concern is two-fold. First, the political vitriol in this country is so horrendous that these people would even openly cogitate these extreme options to defeat/attack or retaliate against political opponents. The second is that, unfortunately, they are not entirely wrong that a sitting president could employ these totalitarian extremes using dubiously immoral legal arguments stemming from this ruling. It is why former president Obama was never criminally charged for the extrajudicial killing (read execution without due process) of two American citizens in Yemen or supplying thousands of firearms to violent Mexican drug trafficking organizations, resulting in the death of hundreds, including a Border Patrol agent.

In conclusion, the heart of the presidential immunity debate is rooted in the separation of power between the three coequal branches of government but “primarily so that the President could perform his duties effectively absent fear that a particular decision might lead to personal liability” or criminal prosecution after finishing his term in office. However, it does not give a president carte Blanche to do whatever they want, like labeling political opposition terrorists and “sending in F-15s” to strike campaign rallies, for example. It is disappointing that this case even needed deliberation before the SCOTUS or that the insidious response to the ruling has gone viral across several mediums, but those are greater discussions for other articles another day.

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Ben Varlese is a former U.S. Army Mountain Infantry Platoon Sergeant and served in domestic and overseas roles from 2001-2018, including, from 2003-2005, as a sniper section leader. Besides his military service, Ben worked on the U.S. Ambassador to Iraq’s protective security detail in various roles, and since 2018, he has also provided security consulting services for public and private sectors, including tactical training, physical and information security, executive protection, protective intelligence, risk management, insider threat mitigation, and anti-terrorism. He earned a B.A. and an M.A. in Intelligence Studies from American Military University, a graduate certificate in Cyber Security from Colorado State University and is currently in his second year of AMU’s Doctorate of Global Security program.

As the Voice of the Veteran Community, The Havok Journal seeks to publish a variety of perspectives on a number of sensitive subjects. Unless specifically noted otherwise, nothing we publish is an official point of view of The Havok Journal or any part of the U.S. government.