The Constitution doesn’t directly discuss presidential immunity from criminal or civil lawsuits or immunity for other government officials. Instead, this privilege of Presidential has developed over time through the Supreme Court’s interpretation of Article II, Section 2, Clause 3:
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The legal doctrine concerning Presidential Immunity dates back to its 1867 decision Mississippi v. Johnson, 171 U.S. (4 Wall.) 475 (1867), where the Supreme Court established that the President is largely beyond the reach of the judiciary by holding that it could not direct President Andrew Johnson in how he exercised his purely executive and political
powers. The ONLY exception is an impeachment for a crime. The Court stated it had no jurisdiction . . . to enjoin the President in the performance of his official duties.
In Franklin v. Massachusetts, 505 U.S. 788, 825–28 (1992) Justice Scalia, concurring, noted Mississippi v Johnson, stating:
“I am aware of only one instance in which we were specifically asked to issue an injunction requiring the President to take specified executive acts: to enjoin President Andrew Johnson from enforcing the Reconstruction Acts. As the plurality notes, ante, at 802-803, we emphatically disclaimed the authority to do so, stating that” ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.'” Mississippi v. Johnson, 4 Wall. 475, 501 (1867). See also C. Burdick, The Law of the American Constitution §50, pp. 126-127 (1922); C. Pyle & R. Pious, The President, Congress, and the Constitution 170 (1984) (“No court has ever issued an injunction against the president himself or held him in contempt of court”). The apparently unbroken historical tradition supports the view, which I think implicit in the separation of powers established by the Constitution, that the principals in whom the executive and legislative powers are ultimately vested-viz., the President and the Congress (as opposed to their agents)-may not be ordered to perform particular executive or legislative acts at the behest of the Judiciary.2″
Two vice presidents have been indicted: Aaron Burr in New York and New Jersey for killing Alexander Hamilton in a duel at Weehawken, New Jersey on July 11, 1804, and Spiro Agnew, who pleaded no contest to several offenses at the moment of his resignation. However, the same arguments have not been made for vice presidential immunity as for presidential.
In 1973, during the infamous Watergate scandal, the Department of Justice’s Office of Legal Counsel (OLC) issued a memorandum concluding that it was unconstitutional to prosecute a sitting president, then Bill Clinton. The question becomes, what is an insurrection?
Legally, sedition is conduct or speech that incites individuals to rebel violently against the government’s authority. Insurrection includes the actual acts of violence and rebellion. In a Republic, sedition and insurrection refer to inciting or participating respectfully in rebellion against the constitutionally established government, including its processes, institutions, or the rule of law. In other words, it MUST violently seek to overthrow the government or its institutions by overthrowing the Constitution itself. One cannot commit sedition or insurrection to “overthrow a government” while still claiming to uphold and defend the Constitution. Consequently, the rule of law and the Constitution are inextricably linked. There MUST be violent attacks that would thus not be protected actions.
Nobody has been charged with 18 USC 2383 because they knew they had to prove there was a violent attempt to overthrow the government. Special Prosecutor has Charged Trump with CONSPIRACY, which is simply an agreement – not the substantive crime of insurrection. They have charged Trump with what someone could charge all of these prosecutors for interfering in the 2024 election. The statute is Civil Rights Violation 18 USC 241, widely used as a catch-all for anything you can allege. It carries a punishment of up to 10 years in prison. It has been routinely used in election fraud conspiracies, like ballot box stuffing.
Smith has alleged “a conspiracy against the right to vote and to have one’s vote counted.” Essentially, Mr. Smith has accused Mr. Trump of trying to rig the outcome of the election to claim victory falsely. Naturally, the Democrats refused to investigate election fraud of dead people voting, etc. This has been a selective prosecution. The Washington Appellate Court claimed that Trump was acting not as the President but as a candidate.
U.S. DC Circuit Judge Sri Srinivasan in Marxville was NEVER even a judge before who was controversially appointed under former President Barack Obama to the position of Chief Judge no less of the DC US Court of Appeals because of his race. This questionable judge, in trying to destroy Donald Trump, wrote in the ruling:
“In arguing that he is entitled to official-act immunity in the cases before us, President Trump does not dispute that he engaged in his alleged actions up to and on January 6 in his capacity as a candidate. But he thinks that does not matter. Rather, in his view, a president’s speech on matters of public concern is invariably an official function, and he was engaged in that function when he spoke at the January 6 rally and in the leadup to that day. We cannot accept that rationale,”
He has stripped everyone of immunity, and all you now have to do is file a suit against him and argue he was not acting as a judge and did not follow the law because he was doing so for personal gratification. Special Prosecutor Smith could be libeled for the very same statute interfering in everyone’s right to vote, and he was acting as a partisan – not according to established law.
The Supreme Court has recognized various immunity statutes by Congress that give immunity in return for testimony, as in Kastigar v. United States, 406 U.S. 441, 445–46 (1972). The English Parliament first enacted a statute providing immunity in 1710 (9 Anne, c. 14, 3–4 (1710)). That created the precedent that America followed. Finally, it was Congress that enacted the first federal immunity statute in 1857, providing immunity in return for who would rat on someone the government wanted (Ch. 19, 11 Stat. 155 (1857). However, there was an exception for perjury committed while testifying before Congress.
The Supreme Court’s decision in Counselman v. Hitchcock 142 U.S. 547 (1892) soon rendered Congress’s immunity statute unenforceable, holding that providing limited immunity was unconstitutional to compel testimony.
Article I, Section 6, Clause 1:
The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
If the Constitution did not create IMMUNITY for anyone other than Article I, Section 6 Clause 1 on a limited basis to prevent criminal law from interfering with a vote, arrest a Congressman to prevent him from voting for or against a bill. Courts or statutes have created all other immunities. My question boils down to HOW can you create immunity for any government official that would violate the Eighth Amendment, be it excessive fines or cruel and unusual punishment? If you have ABSOLUTE immunity for Special Prosecutor Smith and judges regardless of their actions, then how can you deny IMMUNITY for Trump? Either everyone has it, or nobody has it. These are all judicially crafted immunities – not prescribed by the Constitution.
