Thursday, January 11, 2024

It’s Thursday, January 11, 2024.

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Part I

The Question of Presidential Immunity is Complicated: The Difficulty Comes Down to Determining the Limits of Presidential Immunity and Constitutional Implications

Increasingly, there is one name at the center of so much of the legal and constitutional conversation in the United States. Increasingly, that name is Donald J. Trump, the former president of the United States and current apparent front runner for the 2024 Republican presidential nomination. We are looking potentially at a rematch of the election that took place in 2020 with Joe Biden versus Donald Trump. But now Joe Biden’s the incumbent president of the United States, and former president Donald Trump is emerging as his central challenger, but also challenging our massive issues appearing before the courts.

Just in recent days, several hearings have been heard in several different courtrooms, but most importantly in terms of our worldview consideration, we need to look at what took place this week at the United States Court of Appeals for the District of Columbia. Now, that court is second only to the Supreme Court of the United States in terms of its authority in this country and the magnitude of the issues with which it deals. It is often seen as a setup for the Supreme Court in two ways. Number one, in terms of justices who will eventually sit on the Supreme Court. Many of them have been seated previously at the US Court of Appeals for the DC Circuit. But you also have cases that are set up, cases that raise huge questions of constitutional magnitude and the establishment of legal precedent.

That’s why what took place at the DC Circuit this week turns out to be really, really important, because in the hearing that was held this week in Washington DC, the former president of the United States, through his attorneys, but with president in the courtroom, made the argument that he had total immunity for actions taken while he was president of the United States. By total immunity from criminal prosecution, the president’s legal team clearly meant total immunity.

Now, almost immediately you had people saying, “Well, that’s absolutely ridiculous,” but we also need to look more closely at the fact that it’s not absolutely ridiculous. It’s actually a very complicated question and one that bears a much closer examination. Is the president of the United States insofar as he acts as president, is he immune from criminal prosecution about presidential acts? Well, then what defines a presidential act? Could he commit some kind of criminal violation that could be judged to be not a part of his official responsibilities? Are there any limits whatsoever on this claim of presidential immunity?

By the way, the only limit that the president’s attorneys seem to recognize was their argument that there could be an application of this kind of criminal investigation proceeding and prosecution against a former president for acts that were undertaken as president during that tenure, that were later identified as the cause of impeachment by the House and conviction by the United States Senate, and thus removal from office. That we should note is exactly the opposite of the argument that was made by at least some of the president’s attorneys during one of his impeachment proceedings. But it’s not unusual that you have legal teams making contradictory arguments in very different contexts.

What should we think about this? Should a president of the United States, the nation’s chief executive commander-in-chief of the Armed Forces, should a president be immune from criminal prosecution during that presidential term? I would suggest we not seek to answer that question too hastily, because it is complicated and we need to think about some of those complications. Life in a big government in a fallen world turns out to be very complicated even, and perhaps in this case, especially under a constitutional form of government, which means we actually are accountable to a constitutional system and to a constitutional text.

What are we to think of this? A team of reporters for the New York Times reported the story on the front page this way, “A federal appeals court expressed deep skepticism on Tuesday about Former President Donald J. Trump’s claim that he is immune from charges of plotting to subvert the 2020 election, suggesting that it is unlikely to rule in his favor on a central element of his defense.” The reporters went on to say, “As Mr. Trump looked on, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit peppered his lawyer, D. John Sauer, with tough questions about his assertion that his client could not be prosecuted for actions he took while in the White House.” The paper went on to say, and I quote, “The judges seemed incredulous when Mr. Sauer said a president could use the military to assassinate a political rival and be shielded from prosecution unless the Senate first convicted him at an impeachment proceeding.”

Before analyzing this, let me read just one more sentence from this report, “At another point, Judge Karen L. Henderson, the panel’s sole Republican appointee, seemed to reject a central part of Mr. Trump’s argument that his efforts to overturn his loss to Joseph R. Biden Jr. Cannot be subject to prosecution, because presidents have a constitutional duty to ensure that election laws are upheld.” Well, there’s a lot to consider there, but one of the first things we need to think about is the fact that we really haven’t had to think about this issue as a country until now. There never has been this kind of criminal proceeding against a sitting or former president of the United States. There have been all kinds of issues related to whether or not presidents acted legally or illegally, constitutionally or unconstitutionally in previous contexts, but this is entirely new and it requires us to take a more thoughtful and considered look at the question.

Now, we have a former president of the United States facing multiple criminal charges having to do with actions that were taken or undertaken while he was president of the United States. And he’s saying, “Look, there can be, according to our constitutional system of government, no prosecution of a former president or, for that matter, of a sitting president for actions undertaken as president.” Okay, massive questions here. Number one, is that true? Is it true that presidents are or should be immune from criminal prosecution for actions taken as president? Well, before you immediately say that presidents or former presidents should not have this kind of immunity from criminal prosecution, recognize that we must grant to presidents and former presidents a very wide category of actions that would be immune from criminal prosecution in the United States or elsewhere. This is not a hypothetical issue. You are looking at presidents who have to make all kinds of decisions, and frankly many of them are unknown to us or they become known only long after a president has been in office.

I’m going to make a categorical statement here that may shock you. I believe that most presidents of the United States, if not all of them, have acted at some point illegally and unconstitutionally. Now, before you have a heart attack, let me just explain that, even in the founding design of our country, there is the understanding that the chief executive, as commander in chief, just to take one of the responsibilities constitutionally invested in the president. In the prosecution of war or military action and in the modern world that just gets almost infinitely more complicated with espionage and fights against organized crime and just all kinds of things that frankly we count on a president, we count on our national federal government to handle these things. But we also understand that many of these things have to be handled out of sight and out of the public mind.

Furthermore, some of them are extra legal or extra constitutional. They’re actions that have to be taken and, quite frankly, it is not clear that there’s always a sound legal basis. For that matter, when it comes to the United States military, or for that matter, the prosecution of any kind of military effort, it has been understood–nd this is baked into the cake so to speak, even of just war theory in the Christian theological tradition–there is the understanding that there are many gray areas in terms of the extremity of moral questions such as war in which basic principles take place. But quite frankly, one of the big problems in the aftermath of war is that you have the risk of simple victor’s justice. That is to say whoever wins the battle or wins the war executes justice according to that nation’s priorities. That’s just very dangerous.

We have to understand it’s also a very real threat. The United States government undertakes some actions that simply don’t fit the category of national law or might not, in an even broader context, meet muster when it comes to international law. That’s one of the reasons why, just to put in a footnote here, that the United States is not a signatory to many international agreements when it comes to matters of criminal law and, for that matter, human rights courts, simply because there is a pretty good assurance that the United States could be criminally prosecuted for acts that are righteously undertaken by this government in protection of the citizens of the United States of America. But at the same time, we recognize there have to be limitations upon what a president can and can’t do.

Even before we get to the second question, the first question is: should presidents be immune from criminal prosecution for presidential acts? Our system of government basically says that, yes, that is the presumption that presidents are immune from criminal prosecution for actions undertaken as president. But even as that has been a pretty consistent legal understanding, it’s also clear there are limitations, there are boundaries to that principle. And frankly, we can think of the most glaring of these by looking at the potential prosecution of President Richard M. Nixon for crimes undertaken by himself and by his administration in the Watergate scandal. There’s another context of this, and that is that after the resignation of President Nixon, President Gerald Ford very controversially issued a pardon to the former president for any criminal prosecution.

Now, when you accept a pardon, the legal context is you are acknowledging that you have broken the law. In giving the pardon, President Ford implied that Former President Nixon had violated the law. And in accepting the pardon, there is also a very clear sense in which the former president accepted that there had been criminal liability that could have led to criminal prosecution. Does that set a precedent? Well, it’s not clear one way or the other at this time. It’s also clear that if you look back to presidents, let’s just say the two presidents immediately before Richard Nixon, and that would be Lyndon Baines Johnson and John F. Kennedy, both of them committed actions that certainly could have led to criminal prosecution.

Now, should they have led to such prosecution? That’s a different question. But it is clear that when you’re looking at presidents of the United States, you were looking at a very powerful constitutional office, I believe, in our system, a very necessary constitutional office. But if that president is going to be vulnerable to criminal prosecution for acts undertaken as president, well, no president is going to be able to undertake acts. But there’s another problem. As I said, there has to be a limitation on that. And in this particular hearing, you had the attorneys for the former president of the United States asked the question, “What would happen if the president of the United States used a military team, in this case a Navy SEAL team, to assassinate a political opponent? Could that president or former president be criminally prosecuted?” You’ll note that the president’s attorneys offered a very inadequate answer, just bluntly inadequate.

They said that there could be a criminal prosecution only if that president or later former president were removed from office by impeachment, by the House, and conviction by the United States Senate. At least one of the judges on the panel just pointed out that that’s a frankly ridiculous position, because that would mean that any president having committed such an act could simply resign from office and never be prosecuted even for using the United States military to assassinate a political opponent. Just to state the matter clearly, that is not going to stand, and that’s why most observers looking at Tuesday’s hearing at the DC Circuit felt that the former president’s legal team had made arguments that no one is going to be able to accept in terms of the federal judiciary.

It’s going to be very interesting to see what takes place, but there is a huge second question. The first question is, should a president be immune from criminal prosecution? The answer to that has to be yes and no. And I think it’s going to be very difficult for a court to say exactly how yes and exactly how no, but we’re an uncharted terrain, and that’s exactly what the DC Circuit team is going to have to do eventually with the authority of the DC Circuit, almost assuredly appealed to the United States Supreme Court. So, here we go again, we are in uncharted territory and time is not on our side.

Part II

The Great Strength of Constitutional Government: How Our Arduous Processes Enable Justice and Prevent Totalitarianism

But there’s a second question: Well, if there could be some actions taken by a president that would be immune from criminal prosecution, that would imply there could be other acts by a sitting president that would not be invulnerable to criminal prosecution.

How do you make that distinction? What actions should be considered beyond prosecutorial reach and what actions would not be considered? Well, that is a tangled web of questions, and at least implied in the hearing before the DC circuit on Tuesday was the fact that that distinction has to be between acts that are undertaken as president of the United States, as would be contrasted with a president acting in a private capacity for his private personal interest or acting as a candidate for the presidency rather than an incumbent president. And if that sounds complicated, it’s because it is complicated. But this also reminds us of the fact that the only thing worse than having this form of government as having any other, which is to say we have a constitutional form of government and it only works if there is adherence to the Constitution, respect for the Constitution, and that means respect for the process of answering very hard questions as are presented to us.

Now, in the white hot heat of the 2024 presidential election, the issues are very significant and the timing is very crucial. It’s going to be fascinating to see how this court acts and then what happens thereafter. But let’s just say that there are two arguments that are immediately revealed to be inadequate. Number one, that a president can do anything without fear of criminal prosecution insofar as the acts were undertaken when the president was president. That’s untenable. But equally untenable is the argument that everything a president does can be somehow subject to subsequent criminal prosecution. If that is the understanding, then no president can do anything, and you simply set up a political context in which you have two different parties, two different administrations. One can bring any number of charges or potential criminal investigations against a previous or sitting president. It would destroy our system of government.

Huge questions at stake here. Christians understand that, in a fallen world, we should not be surprised that these questions are very vexing. We who are committed to a constitutional system of government have to recognize that respect for the Constitution also leads us to understand that there are questions that were not directly answered in the constitutional text. It’s the responsibility of those who are now the legislators to establish laws consonant with the Constitution of the United States and in fulfillment of that constitutional authority. It is the responsibility of the executive branch to execute those constitutionally-defined laws and policies. It is the responsibility of the courts to adjudicate when there are vital questions of interest having to do with the legality or constitutionality of one act, one action, one policy, or another.

And thus, what we have is an ongoing conversation in a constitutional system of government with hard questions addressed ultimately, in terms of the Constitution addressed by the Supreme Court of the United States and through our judicial system. Some people will say, “Well, that’s quite frustrating. It’s quite time consuming. We want an answer to these questions now.” Well, here’s how you get an answer to these questions right now. You have a totalitarian form of government and you do not have a constitutional form of government. Having a constitution means sometimes, when difficult questions are faced, it takes some time to work them out.

Part III

Technical Failures are More Complicated at 13,000 Feet — Much Less at Higher Altitudes: Recent Headlines Underline Big Issues Many People Never Think About

Okay, next we’re going to move to a very different area of worldview analysis, and it has to do with headlines that include one plane accident in Japan that led to the loss of many lives but not nearly as many as it could have been. And then, of course, an American airliner that lost a plug in the place of a door that could have been an exit, and you had that taking place at 13,000 feet. No doubt it was an absolutely terrifying experience of those on board, but there were no major injuries, although the stories are absolutely horrifying.

Now, you also had a couple of other headlines. One of them had to do with the fact that there was a major successful launch of what was to be a mission to the moon by terms of a mechanical lander. And then, came the report that even as the launch, and the launch vehicle had performed superbly, there was also the report that the vehicle itself was going to lead to a mission failure because of a propulsion problem due to a fuel loss. That meant that the solar panels could not be deployed in time to energize the unit. To make a long story short, there is not going to be a landing of that vehicle on the moon. It’s not clear that there will be any continued mission for that vehicle whatsoever.

At the same time, NASA announced that two-manned space missions to the moon will be delayed. And the delay turns out to be not unexpectedly quite complicated. But it will be at least 2025 and potentially much after 2025 that there is an American-manned mission to the moon. This is all complicated. What does it all come down to? There’s a common theme here. Number one, traveling in space or in the atmosphere is just downright dangerous. It just is. Now, this doesn’t mean we don’t do it, because airline travel… Its safety record is frankly better than just about any other form of travel. But let’s face it, it is still very strange to get into a metal tube with wings and to go up into the air miles into the atmosphere where bad things can happen. Of course, bad things can happen right here at sea level, but bad things can happen when you add human beings to flying machines either in the Earth’s atmosphere or beyond it. It gets complicated.

In Japan, the big story was an Airbus A350 that was landing and had authorization to use an airport apron there in a Tokyo airport hitting a Japanese National Guard plane that led to deaths of people who were on the plane that was not authorized to be there. That would be the National Guard plane. The big story about the airline evacuation in Japan was how successful it was and the images are absolutely arresting, because the plane did explode in a ball of flame. If the people had not gotten off in a very orderly fashion, there would’ve been a massive loss of life on that airliner. Let’s be very thankful everyone on the airliner emerged safely, if of course traumatized by the experience.

Then came what took place just last week in Alaska Airlines, 737–it’s a Boeing 737 MAX 9 airliner–lost a fuselage plug at 13,000 feet after taking off from Portland, Oregon on the way to Ontario Airport in Southern California. At 13,000 feet, the plug left the plane. Had there been anyone near that plug, that person may have been sucked out of the plane. It had to be a terrifying experience. We’re told that a mother and her teenage son were sitting close to that. Well, what became a hole in the fuselage with the wind whipping. According to press reports, the boy had his shirt absolutely ripped off and taken out of the plane, but nonetheless, there were no human lives lost and there were no major injuries reported, but there is a massive injury to Boeing in terms of questions about this particular airliner. All of them have now been grounded. As of reports that have come out in the last day or so, it appears that there are huge questions about how that plug–it’s called a plug because it was put in place of what would’ve been an emergency exit if the passenger airline had been used to carry more passengers.

Evidently, these are rather common on different models of aircraft. This is an uncommon accident, but it’s a part of the responsibility of our federal government and in particular the FAA to look into such incidents to make certain that they are not repeated. Even in the last few hours, it has been reported that early investigations of similar aircraft have found similar problems, including such things as loose or missing bolts. What are we looking at here in terms of worldview considerations? Well, number one, everything becomes more urgent at 13,000 feet. It would become even more urgent at 30,000 feet, which is one of the rated cruising altitudes of that Boeing aircraft. Had the incident taken place at a higher altitude, there would’ve been a much, much higher risk of loss of life, if not the loss of the aircraft itself, simply because of the alteration in the pressures.

You’re also looking at other issues, and that is the fact that, let’s just think about airline travel. It’s a remarkable thing that you can go to an airport, you can get on a jet aircraft, and travel at, well, something like 500 or 600 miles per hour to go to your destination with amazing safety. But here’s the thing: that has remained true ever since the last of the 1950s all the way to the present. That’s a very long time. Basically, about 60 years, we’re not traveling much faster than we did 60 years ago. And that tells us that there have been massive leaps in technology, in engineering, and in the development of, say, transportation, but they’re are not without limits. We are still pretty much stuck where we were in the late 1950s, but here’s the other thing. Those aircraft are much safer. The engineering is better and the inspections are better and those who work on such things have learned a lot of lessons through previous crashes.

That’s another fact of life in a fallen world. Sometimes you have to look at a disaster in order to try to prevent that disaster from happening again.

Part IV

We Sent Men to the Moon in the 1960s and We Can’t Seem to Do it Now? There Are Huge Issues Behind Recent Headlines

But there is a certain issue here when it comes to hubris or human pride. We haven’t fundamentally changed the way airline travel works in over half a century. There’s another even more devastating or even more humbling acknowledgement, and that is evidently we are not as good as we were a half century ago in missions to the moon. That’s just a blunt fact. What America pulled off through NASA in the 1960s. Remember John F. Kennedy, then president of the United States, had given the goal for the nation to land human beings on the moon and return them safely to Earth. He had said that in the early 1960s. It was accomplished before the end of the 1960s. And yet for about a half a century, we seem unable to be able to do the very same thing.

Just an honest analysis of all this would lead us to understand that airplanes are actually not traveling much faster than they were, say, a half century ago, but they are safer. And even incidents like we just discussed, they become a part of adding to the future safety of the airline fleet and airline travel. That’s not nothing. For that, we should be thankful. By the way, it also points to something else. Even small government conservatism, and I consider myself one of them, I think every level of government has to be justified in terms of its reach. I think most of us recognize we do actually want an organization such as the FAA undertaking a look at such incidents and investigations and having federal nationwide standards for airliners. I think we’re pretty much assured that that’s an important thing.

We all know of the propensity of any government to overreach and we seem to have an almost infinite number of illustrations of such overreach. But when it comes to the pills we take and when it comes to the planes in which we fly, I think we’re pretty much satisfied that someone at the federal level does need to have a set of standards and the tools of expertise to understand what is safe and is not safe. Even that’s not without restriction, and even that responsibility is not uncomplicated, but in a fallen world, there does appear to be at least some assignment for our federal government in these issues.

But there’s something else. And just as we bring this to a conclusion, if we’re not as good about sending, say, vehicles to the moon and human beings to the moon and returning them safely, if we’re not as good as we were in the 1960s, why is it? Well, one of the things is that we’ve complexified everything. Now, everything has to be about everything. The number of federal authorities and agencies that had to be involved in the Apollo program is dwarfed by those that are involved now. If you want to look at massive government, just look at how much is now required in terms of bureaucracy and government oversight and all kinds of legal issues, political dimensions as well, just to get to the announcement of a major space program. And then, you have all kinds of other issues. You have new technologies, digital technologies. Remember that the Apollo spacecraft took off with a computing system that’s now dwarfed by what you’re probably using as the technology on which you are listening to The Briefing.

We have an almost, by magnitude, difficult to describe increase in, say, technological and computing ability. That is not translating into greater speed and effectiveness in, say, putting human beings on a rocket, sending them to the moon, landing them on the moon, and returning them safely. But there’s something else going on here, and that has to do with the fact that the Apollo mission undertaken in the 1960s, it was a matter of national pride and national priority, specifically in the context of the Cold War of the United States versus the USSR of western constitutional democracy versus Soviet communism with the world watching. The American moon effort, successful as it was, was undertaken to make a global point, even as, of course, its goal was to successfully take human beings to the moon and then return them to earth safely.

At least one big question for Americans today is this: have we, in this complicated age of the 21st century, made it virtually impossible that we can do what we did in the 1960s? Now, that’s a huge question and, of course, with it come huge consequences, a lot for us to think about.

Thanks for listening to The Briefing.

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I’ll meet you again tomorrow for The Briefing.

R. Albert Mohler, Jr.

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