top of page
What to do about now, political theory blog, political philosophy blog, logo_edited.png
  • Jenny Strandberg

Presidential Immunity: What Would Plato Say?

A neo-classical building, with marble columns. The United States Supreme Court.
Photo by Fine Photographics on Unsplash

The recent Supreme Court ruling on presidential immunity has sent shock waves throughout the American society. A new reality has dawned on the world’s first modern democracy[1] where presidents will, from this day onward, be insulated from criminal prosecution when using their official powers. It is true that elected officials have always enjoyed a degree of immunity, or qualified immunity, from charges against actions taken while in office, if they were made in good faith. But with the latest Supreme Court decision on the issue, occupants of the highest office are granted more or less absolute immunity, meaning that any action considered part of their core constitutional powers and responsibilities is protected, regardless of the intent behind the action. This would include former President Trump’s attempt to get the Justice Department to investigate unsubstantiated claims of voter fraud in the 2020 election. Presumably, it would also protect him from prosecution if he was reelected and made good on his promise to use the Justice Department to take revenge on his political enemies. However, even if many Americans, especially those on the left, are appalled by the latest ruling, the court is right to give the issue of immunity serious consideration.

 

Plato understood the important role that immunity plays in political life. In the Statesman, he considers a scenario where political leaders must follow the law absolutely without any form of protection against prosecution if mistakes are made. This kind of law-state clearly serves as a deterrent example in the dialogue, as it stymies human thought and action in politics and opens the door to politically motivated vendettas. To make his point, Plato has the reader imagine a state where no one has experience or knowledge in governing. We are to further imagine that already existing, half-decent laws are in place to prevent this precarious situation from deteriorating. These laws must be followed absolutely to avoid the seizing of power by tyrannically minded citizens. Additionally, Plato stipulates that no one is allowed to make “clever speculations” about truth and justice in the law-state (Statesman 299b). That is, the citizens must never question the law or think for themselves about social and political issues. They are elected by lot and must treat existing laws as a manual to be followed blindly.


As we can see, these officials are not governing with laws, as active, thinking human beings would, but acting as obedient servants of the law, mere cogs in a machinery. When their term is up, their performance in office is evaluated in special court proceedings. Fines and other types of penalties are issued to those who are deemed unfaithful to the state. There is no immunity for civil servants in the law-state. Absent, too, is genuine political judgment.


On the other end of the spectrum, Plato places the true statesman, a political figure who possesses knowledge and expertise in ruling, and he endows this person with absolute immunity. The true statesman deserves to rule above the law because their judgment is more accurate and flexible than written law, which cannot be tailored to suit every person and situation perfectly. In comparison to reason, the law “resembles some self-willed and ignorant person,” writes Plato, someone “who allows no one to do anything contrary to what he orders, nor to ask any questions about it, not even if, after all, something new turns out for someone which is better, contrary to the prescription which he himself has laid down” (294e). Laws are an encumbrance to the true statesman’s governing practices, which form the ultimate standard of what is best for the society and its citizens.

 

We may react with feelings of disapproval to both these scenarios, but the contrast highlights something essential about governing: it is an activity that cannot be carried out simply by following written instructions. A degree of the freedom is necessary for political leaders to be active, thinking subjects within the political institutions and processes they are part. Even the most narrowly written law needs to be interpreted and applied to specific situations. Governing is about understanding the problems a community faces, identifying goals, and working out how to best achieve them. It is about changing laws and writing new ones. These activities require deep knowledge of the situation and the stakeholders, as well as practical reason. They require a degree of political expertise, which involves more than the mechanical enactment of procedures typical of the servants in Plato’s law-state. Granting governing officials a degree of immunity, therefore, allows them to apply their expertise and reason about the best ways to operate our societies.

 

Given his careful analysis of the issue, what would Plato say about the recent ruling on presidential immunity? Let us first consider some of the concerns raised by the justices during the hearing in April. Justice Samuel A. Alito Jr. expressed the opinion that immunity is needed to ensure that an incumbent president who loses an election would “leave office peacefully”.[2] Justice Ketanji Brown Jackson had a different concern: “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they’re in office?” She gave the example of ordering a military coup and asked if it would count as an official act for which a president could get immunity. To this, Mr. Trump’s lawyer, D. John Sauer, responded that “it could well be”. In his view, a president can only be prosecuted if both these conditions are met: first, the president is impeached and convicted by Congress, and second, the criminal statute that has been violated directly specifies that it applies to the president, which very few do. If this is not the definition of absolute immunity, the notion that the president is above the law, it comes close to it.


Qualified immunity tries to address both concerns by protecting officials from malicious legal action (Alito’s worry) while limiting the scope of official acts that merit such protection (appeasing Jackson’s worry). According to an earlier ruling on the matter, a degree of immunity is needed to foster “the fearless and unflinching discharge of their duties by public officials.”[3] For instance, when the National Guard fired into a crowd of students who were protesting the Vietnam War at Kent State University in 1970, killing four students and injured nine others, the Court argued that it needed to balance the students’ constitutional right to peaceful protest with the ability of public officials to make decisions in potentially dangerous situations. Famously, they ruled in favor of the defendants in this case, which included the governor of Ohio, against the families of the deceased and injured students.

 

The liberal justices’ concerns from the hearing were not taken into consideration in the majority opinion on presidential immunity. The conservative justices argued that “broad immunity” is needed to protect “an energetic and independent executive.” In her dissent, Jackson wrote that the decision has “declared for the first time in history that the most powerful official in the United States can (under circumstances yet to be fully determined) become a law unto himself.” In other words, shielding presidents from prosecution by political opponents was prioritized over the risks of power abuse, moving the highest office in the United States closer to Plato’s ideal of a true statesman.


Even if a statesman who rules above the law with expertise and knowledge was Plato’s political ideal, he was acutely aware of the risks it posed in practice. Hiding behind the true statesman is a political impostor who merely pretends to have expertise. By claiming to be the true statesman, this figure demands to rule with absolute immunity only to exploit their subjects for selfish purposes. One can easily imagine a leader who commits acts similar to those former President Trump stands accused of: spreading lies about voter fraud, recruiting fake electors, and obstructing the certification of the Electoral College results.

 

While being aware of the threat posed by a fake statesman, Plato also knew that a degree of immunity is necessary for genuine political judgment. In my reading of the dialogue, he formulates a practical political ideal that supports human reasoning in politics within the confines of law. This figure (Plato thought it was likely a monarch) does not claim to be an expert in statesmanship and must consequently rule with law as well as according to their own judgment. What this means in practice is not made explicit, but we must assume that the constraints posed by law on the ruler amount to a version of qualified immunity. Complete lack of immunity would impede on governing officials’ ability to reason about public matters, as it would make them vulnerable to prosecution by political opponents. Absolute immunity, on the other hand, would grant statesmen the freedom to do what is best in every situation for all parties involved, but it would also give an autocrat-in-disguise free rein to inflict the greatest harm on its people and institutions. Therefore, Plato opted for a type of limited immunity for his practical political ideal.

 

Even though Plato provided few details of his practical ideal, he left us with an imperative that remains highly relevant today: We must strive to organize our societies to harness human reason fully, while crafting institutional and legal barriers against the weaponization of laws and the abuse of power by autocrats. The recent Supreme Court decision does not heed that advice. By effectively granting presidents a 'get-out-of-jail-free' card, it opens the door for political pretenders—autocrats who seek to exploit the highest office for personal gain, without regard for the well-being of ordinary citizens.

 

As Richard M. Nixon famously remarked during his 1977 discussion with journalist David Frost about presidential power: “When the President does it, that means it is not illegal.” Plato’s true statesman would not have put it that way. A president’s (or king’s) word should only supersede the law if it is better, more accurate and suited to the circumstances. And it is so only if the statesman’s judgment “preserves” the citizens and “bring it about that they are better than they were” without an intervention (Statesman 297b). There are no such stipulations made in the Supreme Court ruling. The majority appears focused on shielding an energetic and independent executive, regardless of the quality of their judgment. This is a very dangerous path for the country to take—one that Plato would most likely have opposed.

 

 


[1] I’m speaking here about a widespread cultural perception among Americans. It should be noted that disenfranchisement of different groups of people, especially non-white voters, remains a problem within the country’s electoral system.

[2] Liptak, A. (2024, April 26). Conservative justices take argument over Trump’s immunity in unexpected direction. The New York Times. Retrieved from https://www.nytimes.com/2024/04/26/us/politics/supreme-court-trump-immunity-election.html

[3] The quote is from the majority opinion written by Chief Justice Warren E. Burger which states in full: "In light of the functions performed by those officials, the public interest may be better served by action taken 'with independence and without fear of consequences.' The concept of immunity assumes this posture as it fosters the fearless and unflinching discharge of their duties by public officials." Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).


References

 

Liptak, A. (2024, April 26). Conservative justices take argument over Trump’s immunity in unexpected direction. The New York Times.

 

Plato. ‘Statesman’. Plato: Complete Works, Cooper, John M. & Hutchinson, D.S. (eds.), Cambridge MA: Hackett Publishing, 1997.

 

Scheuer v. Rhodes, 416 U.S. 232, 240 (1974).

311 views0 comments

Comentarios


Culture wars
bottom of page