Newsweek: It’s Not Just About Immunity Here. It’s About Impunity Over There
Newsweek
It’s Not Just About Immunity Here. It’s About Impunity Over There | Opinion
Published Jul 10, 2024 at 12:17 PM
Retired Judge and Author
One consequence of the Supreme Court‘s recent decision on presidential immunity may seem laughably quaint—its consequences for the Nuremberg Principles—collectively, the idea that the law could address, and thus deter, crimes against peace, war crimes, and crimes against humanity.
These principles once mattered. At the end of World War II, it was the United States that insisted that, rather than simply execute leading Nazis, Germany’s leaders should be publicly tried. The defendants, led by the Nazi’s second most powerful man, Hermann Göring, mocked the court that ultimately convened in Nuremberg as merely a forum for victor’s justice. But we disagreed. For a time, the trial with its deliberative character and its varying verdicts was a source of American pride and a pledge that America was a different, more just, world power.
Sadly, the shining eyes of that era have long since dimmed. The United States never ratified the treaty creating the international criminal court and has derided and frustrated its proceedings ever since. So, what possible difference could the Supreme Court ruling on presidential immunity make?
The difference is the removal of the final fig leaf some of us thought was covering America’s refusal to subject itself to the jurisdiction of an international criminal tribunal. With some justification, we argued that America could not be judged internationally because it played a unique role in the world and is vulnerable to political pressure through bogus legal proceedings. We recoiled from the idea that outsiders could be given power over the foreign policy intended to keep us safe and free. Most important for this discussion, we could at least believe that we didn’t need the court because, if our leaders did commit crimes in foreign affairs, we would handle them ourselves.
But not anymore. In its immunity ruling, the Supreme Court made presidents of the United States absolutely immune from prosecution in this country for crimes committed while carrying out their “core” responsibilities—those duties exclusively assigned to the president in the Constitution. Near the top of any list of core presidential responsibilities is the conduct of foreign policy and the president’s power as commander-in-chief of our armed forces.
Yes, the court was right to be concerned about political rivals perpetually prosecuting their predecessors. It was right to protect presidents from petty, political prosecutions. The trouble is that the ruling admitted of no exceptions in foreign policy, even for the most heinous crimes. This includes the kind of crimes that Supreme Court justice and Nuremberg prosecutor Robert Jackson described as “so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
Absolute immunity is absolute. A straight-forward reading of Chief Justice John Roberts‘ opinion means that, having withdrawn from international justice, an American president would not even face at home the justice it imposed on the Nazis, even if the president engaged in aggressive war, the intentional massacre of innocent civilians, or genocide.
So maybe Göring was right. The only crime those with absolute power commit is losing a war. On its face, the immunity decision means that, without a legal structure to address it, only violence from without or within can hold a president to account for crimes committed in war or foreign affairs.
But it doesn’t have to be this way. Roberts wrote the rules for presidential immunity roughly—intentionally—to respond to events. The Roberts Court wrongly took a mechanical view that suggested that all inquiry was concluded once we know from what pigeon-hole the president is proceeding—war, foreign affairs, etc. Yet future courts wouldn’t have to strain too hard to deviate from this view.
The Supreme Court said that when the president is manifestly acting outside his authority, he has no immunity whatsoever. Is it too much to say that in war and foreign affairs the president manifestly has no authority to attempt the extermination of an entire race of people? Are we so afraid of the slippery slope that we would prefer to tolerate unmitigated evil rather than risk politicallymotivated harassment? If we are—if even the depredations of the Nazis are immune—we would lose more than the Nuremberg principles. We would lose our soul as a nation. We can only hope that on future days that a future court will prefer us to hold onto it.
Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.
The views expressed in this article are the writer’s own.
