Thursday, February 8, 2024

Part I

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No Blanket Immunity for a President: Federal Appeals Court Rejects Former President Trump’s Argument

Sometimes we confront an issue that has no clear, easy answer. Sometimes that same quandary is faced by a panel of judges, or by a court in the United States. That’s not unprecedented. Frankly, these days it’s not all that uncommon.

But today, we need to talk about something with vast worldview implications that also comes with vast political implications. Given the political volatility of this kind of issue, it’s frankly difficult for Christians sometimes to unpack and think about, analyze from a Christian worldview. But that’s our task. Let’s try to do it.

We’re talking about the three-judge panel of the D.C. Circuit Court of Appeals that handed down an order on Tuesday, two days ago, stating that former President Donald Trump does not have blanket immunity for all actions taken during the time he was in office. That might sound like a political question, but it’s packaged, in this case, before the court as a constitutional question. We have to understand those are two separate questions.

The question confronted by the court is, how this squares with constitutional government. Indeed, with the text of the constitution. To cut to the quick, the three-judge panel ruled that former President Donald Trump does not have blanket immunity for all actions taken during the time that he was in the White House as President of the United States. There was one Republican appointee, two Democratic appointees on the three-judge panel. Just a little footnote here, if you wonder why these appellate courts are called circuits, it’s because just like the circuit-riding preachers during the time of the 17th and 18th century in the United States, these were circuit-riding judges. Federal judges, who rode on a circuit. These are appellate judges. In this case, you really are looking at some old language, but we use it every single day.

But as you’re looking at this, you also recognize there is another issue here. That is, why a three-judge panel? The total panel of the D.C. Circuit, which is the most influential circuit of the U.S. Circuit Courts of Appeals. As you look at this, you recognize that there are a lot more than three judges on the total court. But for efficiency’s sake, the cases are often broken down so that three-judge panels, notice that’s not an uneven number, an odd number, that’s not by accident. Three-judge panels give the initial ruling on these questions.

Now, that means that the losing side can appeal. That side can appeal, first of all, for what’s called En Banc Hearing, which means the entire D.C. Circuit, the entire court, all of the judges on that court. Or in this case, there can be an immediate appeal to the Supreme Court of the United States. There’s simply no question that eventually this is a central constitutional question, that will have to be answered by the Supreme Court of the United States.

But wow are we looking at a series of issues here. First of all, let’s look at the claims made by President Trump. The former president was making a straightforward argument that virtually everything done when a president is in office is covered by blanket immunity, which means judges don’t even have to make decisions about which acts are and are not covered by some kind of legal liability. There’s just total immunity from all liability, criminal prosecution, well just go on and on. Just to make matters clear, that claim of blanket immunity simply won’t stand. It’s untenable. You had President Trump, when he was candidate Trump running for the presidency, say the first time he ran, that he was so popular that he could shoot a person in the streets of New York and get away with it.

His attorneys were basically making the argument that a president could do anything during the term in office, and declare that it’s an official act that is covered by blanket immunity. The three-judge panel is unanimous in saying, “That’s absolutely ridiculous.” Frankly, it is ridiculous. I think the attorneys representing the former president knew that the claim was simply far too extensive and comprehensive to withstand scrutiny. But it’s also clear, that it may be true that the former president himself actually believes in some form of such blanket immunity. This panel of judges on the DC Circuit said, “There is no such blanket immunity.”

But at the same time, there’s another extreme that I think we must avoid. That is arguing that a president is to be liable as to face liability for decisions or actions made while in office. This is where we need to understand the Constitution of the United States does not explicitly answer this question, nor should we have expected the founders to foresee every single question that might arise. But the bar for removing a president from office by means of impeachment and trial is high crimes and misdemeanors.

But as you’re looking at that, you recognize, “What about political crimes and misdemeanors? Or, What about actions that might subsequently be considered by legal authorities as say, an illegal act? Or what about civil liability?” There’s a lot here. But the bottom line is, even as it certainly is far too extreme a claim to say that presidents are covered from all liability during the time they are in office, period. It is also the case that arguing the opposite is an equal and opposite problem. Because then, you couldn’t have a president act. You couldn’t have a president function as president without the constant threat of some kind of litigation, criminal or civil prosecution. At the end of the day, no president then could act, and we as a nation would be not only incapacitated, we would be tremendously vulnerable.

There is a good reason why there has been no legal action taken against a former President of the United States ever, period. There’s never been a criminal prosecution of a former president. For that matter, there has been very limited investigation of former presidents. Now, we’re looking at a tradition-busting former president when it comes to Donald Trump. But as I said, we know right now there are two very bad answers to the question as to whether everything a president does during his term in office is covered by immunity. The answer to that has to be no. That covers far too much. It makes no sense that our founders meant that a president could commit, say petty larceny or for that matter, a violent crime as a president, and that be covered by some kind of blanket immunity.

On the other hand, the opposite argument would shut down the presidency. It would also lead to outright political warfare through the courts. That would just mean that when there’s a Republican, there’s a prosecution of the previous Democrat. When there’s a Democrat, there’s a prosecution of a previous Republican. It’s an ugly picture that simply isn’t going to work. Between the claims made by former President Trump, and the claims made by some Democrats and those on the legal and political left, there has to be some sanity to be found here.

But even as we’re looking for some kind of sanity, we need to admit, it’s extremely difficult to know how you would codify this, how you would describe this, how you would legally define this. Anyone who says that’s easy is lying to the American people. But let’s just look at the ruling that was handed down and publicly announced just two days ago.

As the New York Times reports, “A federal appeals court rejected former President Donald J. Trump’s claims that he was immune from prosecution on charges of plotting to subvert the results of the 2020 election, ruling that he must go to trial on a criminal indictment accusing him of seeking to overturn his loss to President Biden.”

The next paragraph, absolutely crucial, “The unanimous ruling by a three-judge panel of the US Court of Appeals for the District of Columbia Circuit, handed Mr. Trump a significant defeat. But it was unlikely to be the final word on his claims of executive immunity.” “Mr. Trump,” says The New York Times, “Who was on a path to locking up the Republican presidential nomination is expected to continue his appeal to the Supreme Court.”

That’s not an inaccurate summary in just a few sentences of what has taken place over the course of the last few days. But Christians looking at this need to recognize, “Wow, there are some huge issues here. Some of them urgently demand our attention.” I started out by arguing, at some length, that there is no ground for a blanket immunity offered to a President of the United States for anything and everything that might be done during the president’s term of office.

I also said that it’s untenable that we just leave presidents open to any kind of prosecution that might come from a subsequent administration. Because at that point, you would just have political warfare move into the courts. It would shut down presidents from being able to act. The truth has to be somewhere between those two extremes.

Part II

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He Took the Pardon: How the Nixon Pardon Sheds Light on the Issue of Presidential Immunity

But this is when we need to remind ourselves of a major political story in the United States from the 1970s. This is the Watergate controversy. It became known as the Watergate cover up. The then President of the United States Richard Milhous Nixon was basically, openly accused of being engaged in a criminal conspiracy from inside the Oval Office, to obstruct justice, and also to facilitate other crimes. These crimes would include perjury, many other things. Remember that former President Nixon was himself a very skilled attorney. He knew the law. There’s actually no excuse for him not knowing what he was doing. Now, frankly, there wouldn’t be an excuse for a president who wasn’t a lawyer, because the president is to be surrounded with people who were able to give him competent legal advice.

But in this case, again, Richard Nixon was a lawyer. He knew the issues. He resigned from office. When Richard Nixon resigned from office in 1974, he precluded any kind of action to remove him from office. But that did not settle the question of his criminal liability, nor about the susceptibility of the former president to some kind of civil litigation against persons who would say they were personally harmed by the actions of the president or the larger conspiracy.

But here’s where we need to remind ourselves that President Gerald Ford, who had been Richard Nixon’s vice president and became president when Nixon resigned, Gerald Ford granted to Richard Nixon a full pardon from all criminal charges. The former president accepted the pardon. What does that mean? If the pardon was meaningful, and it certainly was, it meant that neither President Ford nor President Nixon believed that President Nixon was somehow immune from criminal prosecution for involvement in a criminal conspiracy during the time he was in the White House, and indeed radiating out of the Oval office itself.

Most Americans were real clear in 1974, that real criminal charges could have been brought against former President Nixon. Otherwise, the pardon makes absolutely no sense. That means not only the pardon extended by President Ford, but the pardon received and accepted by Richard Nixon. In the United States, the acceptance of a pardon from a high authority means that one accepts the basic truthfulness of the charges and is not contesting the charges at this point, but is granted immunity.

Now, that didn’t mean that President Nixon didn’t go on to protest and say that he was innocent. It just meant that you don’t appeal a criminal conviction that doesn’t happen, or one that’s been vacated. Now, had there not been a pardon from President Ford back in the 1970s, it’s possible that we would’ve settled some of these issues about what kind of immunity is granted to a president. Almost immediately people are going to say, “You’re talking about Richard Nixon. You’re talking about Watergate. There’s no way he should have been immune from criminal prosecution for those acts. It was just short circuited by President Ford’s pardon.”

But on the other hand, it is also equally important to say that presidents just can’t be exposed to unlimited potential for criminal prosecution, not to mention civil kinds of legal action against them. Because no United States citizen is going to be able to afford to be President of the United States, and someone elected president is not going to be able to act. They will simply be conscribed by the very real and present danger of being prosecuted or sued for whatever they do. There has to be some kind of immunity. Clearly, that’s one of the assumptions of our constitutional order.

The obvious answer to this question is that presidents are to be assumed to have immunity from prosecution or civil liability insofar as they are acting as President of the United States, which is to say in the Oval Office, acting as president, deciding to invade this nation, deciding to sign this legislation, deciding to hand down this executive order. The president in such cases is immune from criminal prosecution or civil liability.

But if a president were to decide to get rid of one of his political enemies, and was to undertake an act of violence either himself or contracting with someone else or arranging with someone else to do it, the bottom line is I think most Americans will say, “That certainly is not covered by any kind of presidential immunity.” If the first part of this is not true, and presidents have an implicit and explicit immunity on matters undertaken as part of their exercise of office, if that doesn’t exist, you can’t have a presidency. You can’t have a president.

Frankly, if that immunity disappears, then congressional immunity is likely to disappear. Judicial immunity by extension is likely to disappear, which means we wouldn’t be able to have a functioning government. That would be an absolute disaster. Frankly, trying to toy around with this issue at the edges would just be toying with disaster. But returning to the action this week, how did this three-judge panel of the D.C. Circuit rule in the matter? What kind of ruling did they hand down? They handed down a unanimous ruling saying that former President Trump has no blanket immunity, period.

Furthermore, they went on to say a little bit more than that. For example, they said, “For the purpose of this criminal case, former President Trump has become citizen Trump with all the defenses of any other criminal defendant, but any executive immunity that might have protected him while he served as president no longer protects him against this prosecution.” 

Now, that makes a certain sort of sense, but when we think about it, it also constitutes a grave threat to anyone who might serve as President of the United States. Basically, that argument says, “You can’t be sued or face criminal prosecution while you are in office on these matters, but evidently, as soon as you leave office, you’re a former president, and thus all those limitations are off.” Clearly, that creates a huge problem. How can anyone serve and act as president if that person knows that immediately after they leave office, they could well face someone knocking at the door with a pair of handcuffs, or with a massive civil lawsuit? That simply won’t work.

But there’s more to this. The 57-page ruling also went on to suggest that there would be a credible claim of criminal responsibility and perhaps criminal charges against a former president. The problem is, they really didn’t set much of a limitation on the scope of that at all. The reporters for The Times summarized the court’s ruling or the panel’s ruling by saying, “The panel composed of two judges appointed by Democrats and one Republican appointee said in its decision that despite the privileges of the office he once held, Mr. Trump was subject to federal criminal law like any other American.”

Now, I think most Americans hearing that would say, “Bravo. Like any other American.” But wait just a minute. Only one American serves as President of the United States. That president has to take legal actions. And just saying that once he leaves office, a president is subject to federal criminal law like any other American, I think most of us honestly would say, “That can’t be exactly right.”

Part III

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The Constitutional Complexities of Presidential Immunity: Evaluating How the Law Does and Does Not Apply to the President is No Easy Task

So let me go out on a limb here, and suggest something that has to be taken into our consideration. Presidents sometimes have to act on very hazy legal ground. Anyone who denies that simply knows nothing about American history, and the American presidency. Sometimes you have Congress seek to come back and say, “Redefine presidential authority,” as they did during the 1960s with the War Powers Act.

But the reality is that given the circumstances of potential violence against the United States, even in recent actions by President Biden, he has acted to order the American military into action, in ways, that in some jurisdiction, particularly international jurisdictions, there might be some accusation of criminal responsibility. Criminal responsibility has been alleged against several former U.S. presidents and understood in the right light by virtually all of them in the modern age. When we say the President is not above the law, we’re not just talking about the fact that he can’t shoot someone in the Oval Office. We also mean that he can’t act with wanton disregard for American law, not to mention the Constitution, without facing some kind of judgment.

But that judgment often comes down to remedial action by Congress. I mentioned the example, of The War Powers Act. In which they say, “no presidents can’t act in that way.” The President’s then bound by that law. But that’s quite different than criminal prosecution. But it seems almost contradictory to say, and yet you look at the crimes undertaken by former President Richard Nixon, and it’s hard to imagine how he would escape criminal prosecution without that presidential pardon. The presidential pardon actually implies that he would have faced such a criminal prosecution.

There can’t be blanket immunity. What’s the bottom line? This is where Christians understand, in a fallen world, sometimes the bottom line isn’t something we particularly like. But the bottom line is this, a President of the United States cannot be understood to have blanket immunity. On the other hand, a President of the United States or a former president once out of office has to be assumed not to bear legal or criminal liability. That is to say criminal, civil liability or facing the threat of prosecution for actions that were taken as president in the course of his presidential responsibilities.

The hard thing when it comes to the case of former President Donald Trump is defining what was and was not in the course of his presidential duties. Quite frankly, it would take the wisdom of Solomon to figure all that out. But it is a very clear and urgent question that’s going to have to be answered. That’s why you can almost certainly count on this particular ruling being appealed, probably more likely immediately to the Supreme Court of the United States. Because there is urgency here on time. That urgency is playing both ways.

Former President Trump does not want to face the threat of this kind of prosecution. Of course, we’re talking about criminal charges having to do with January the 6th. He doesn’t want to face that while he’s running for the presidency. We understand that. There’s an election coming up in November. If he were to be elected president, he would basically be able to order the Justice Department to take some action that might include, the end to this kind of prosecution.

On the other hand, you also have the court’s interest in acting responsibly, and in a timely manner to facilitate whatever appropriate prosecution needs to take place. Because undue delay is unfair to both sides in any kind of criminal action.

I think the editors of the Wall Street Journal get the situation in this quandary pretty much right when yesterday they stated this, “Mr. Trump’s claims of total immunity for anything a president does are obviously wrong, period.” By the way, that’s a very clear sentence. You don’t often see a sentence quite that clear in this kind of article or commentary.

“But the DC Circuit has gone overboard in the other direction by declaring a president has no immunity.” The editors go on to say, “By the DC Circuit’s logic, a former president could be charged with a crime for violating any congressional statute.” They go on to say, “Harry Truman might’ve been prosecuted for seizing steel mills.” They go on to say, “He was blocked by the Supreme Court.”

The electoral consequences are something that we’ll have to wait a while. Right now, we have constitutional issues to deal with. Somehow, some way the right authority is going to have to find a way between a claim of total blanket immunity, which frankly makes no sense, and a claim that there is no immunity, which similarly makes no sense.

Working through this towards a rightful constitutional settlement and judicial decision making, that’s going to require a lot of whatever court takes this up. Either the full D.C. Circuit or, more immediately, the Supreme Court of the United States. It’s not the only massive constitutional issue hanging over the country at the time that is connected with the name of Donald Trump. Or to put it another way, we are indeed in uncharted territory in the United States, but we better figure out how to chart it fast.

Christians looking at this need also to remember the example of Solomon from the Old Testament. Rarely do you find a Solomon executing that kind of judgment in a fallen world with issues of this complexity. Quite frankly, what we have to hope and pray for is that an adequate and sustainable constitutional judgment and settlement can be found, and found in time to allow the constitutional process of the United States to move forward. In a fallen world, no one said this was going to be easy.

Part IV

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How Non-religious are the Non-religious in the U.S.? The ‘Nones’ Aren’t as Secular as the Media Want You to Believe

Finally, for today, very interesting news coming out. The National Public Opinion Reference Survey, that’s conducted annually, by the way, by the Pew Research Center. It revealed just a matter of a short time ago, that non-religious Americans now number about 28% of the population. 28%, that’s getting frightfully close to a third of the population are defined here as non-religious.

Now, they’re sometimes referred to as the nones. That is to say, they have no religious identity. Or they claim no particular religious convictions. But here’s something that we also need to note, When you’re talking about nones, are you actually talking about nones? When talk about non-religious Americans, just how non-religious are they? You have European scholars who are saying, “There’s a difference between American non-believers, and European non-believers.”

European non-believers tend to be secular, with a capital S. They’re actually true secularists more often than what you find in the United States. In the United States, when people say they’re non-believers, an amazing percentage of them still do things that are kind of believerish. You talk to the European secularists and they say, “Hey, we’re secular. We don’t believe in God.” You talk to at least many of those, a significant percentage of those in the United States who claim to be non-religious, it turns out they’re not non-religious in the same way.

You have those who say, “Oh, I believe in God,” or, “I believe in any number of doctrines. I believe in this religious practice.” Now, as a Christian theologian, I want to say much of this is sub-biblical. It’s not by any definition biblical Christianity. But I also have to say as someone who studies these things in academic life, this also is not secularism. It is not a classical model of unbelief, of secularism or of atheism.

This might be something of a cultural or political statement here in the United States. It might be a way of saying, “I don’t go to church. I really don’t have any deep level of religious involvement. I’m not going to commit myself in any way.” But it does tell us something. That even as 28%, now say they are non-religious, they’re not quite as non-religious as some people would have you to think.

Now, as a Christian theologian, that doesn’t particularly assure me. I’m not saying this is a matter of trying to lessen the impact of our evangelistic challenge. I’m just saying we’ve got to be honest about what that challenge really comes down to. Frankly, some of these numbers are simply used to try to marginalize religious belief and the worldview of religious believers in terms of American public life.

Consider these numbers, and this comes from Emily DeLetter of USA Today reporting on the data from the National Public Opinion Reference Survey. Quote, “According to the data collected, 17% of nones [that is N-O-N-E-S] identifies atheists, 20% identify as agnostic, and 63 say they are nothing in particular.” Let’s just state the obvious. Nothing in particular means they didn’t say they’re an atheist or an agnostic. So non-believer in this case doesn’t mean an unbeliever. But as you look at how this is covered in the national media, and discussed in so many intellectual and cultural circles, you would think that these people are outright card-carrying members of an atheist club. But it turns out that the vast majority of them, remember that number, 63% say that they’re just nothing in particular.

Well, nothing in particular is not atheism. The USA Today article, by the way, concedes this in critical language referring to the report itself. Quote, “Most people in the nones, [in the N-O-N-E-S group] believe in God or another higher power.” Let’s just in a full stop right there. That means they’re not atheists. They’re not agnostics. They’re not really even non-religious. Again, as a Christian, we’re not satisfied with religious, but it does tell us how this is used in the larger culture.

“The few go to religious services regularly. They are also not uniformly anti-religious.” This is from the report. “The Pew Research Center said that while they found most in the group say religion does some harm, many others think it also does some good.” “Some nones said they were spiritual, though the same is true of people who are religiously affiliated.” What does this tell us about the actual spiritual state of Americans? It tells us it is in flux, and when it comes to many, they are a long way from biblical Christianity.

But my guess is you knew that before you began listening to this episode of The Briefing. Why are we giving it attention? Because it’s important for us to recognize how this kind of issue is presented in the public square, and reported in the larger media. It is reported as if there is this massive tidal wave building of the anti-religious. But it turns out that just isn’t even close to true.

Now, as a Christian theologian, I want to come right back and say, “I’m not claiming in any sense that these people are regenerate Christian believers.” But I am saying, “They’re not atheists either.” When it comes to how the culture operates, that is a very important distinction. When it comes to our evangelistic challenge, it’s informative as well.

But it also tells us something that the headline says, “Non-religious,” when just about six paragraphs in, it tells us that non-religious doesn’t actually mean non-religious. By the way, the Bible’s already revealed that truth as well.

As I close, I want to talk about how thankful I am for the work the Lord is doing at Boyce College. He’s given us a world-class faculty. Frankly, a world-class student body. The faculty is absolutely committed to preparing young men and women for gospel service in ministry, in the marketplace, all for the glory of God.

I just want to tell you, I’m so thankful for this college, I’m thankful to know these students, and frankly to have the opportunity to teach them. If you know a Christian young person looking for a seriously Christian college, I hope they’ll join us for Boyce College Preview Day. It’s March the 21st through the 22nd. For more information, just go to boycecollege.com/preview. Listeners of The Briefing, don’t miss this, can register for free with the waiver code The Briefing. I think you can remember that. I will certainly look forward to welcoming you to the campus.