Q: Any action, whether official or private, taken by the POTUS, in furtherance of a crime, can be prosecuted after office?
The President of the United States takes official action in furtherance of US policies everyday. I believe he cannot be prosecuted for those actions. Pardoning is an official action. If the President takes a bribe in exchange for a pardon, that would be an official action in furtherance of a crime. Can he be prosecuted for the bribe (the crime) after he leaves office (not for the official action, i.e., the pardon) ? I believe he can. Then why all the back and forth at the Supreme Court, about which actions during the commission of a crime are official and which actions are private ?
A:
You raise an interesting and complex constitutional question about presidential immunity. The back-and-forth at the Supreme Court reflects the lack of clear precedent on this specific issue and the need to carefully consider competing principles.
On one hand, the President has broad official powers and immunities while in office, including the pardon power. There are strong arguments that official acts taken by a president, even if done with corrupt intent, are shielded from prosecution in order to protect the office of the presidency from excess interference.
On the other hand, the foundational principle that no one is above the law suggests a president should not be able to commit crimes with impunity simply by cloaking them in the guise of official duties. Giving a president absolute immunity for criminal acts just because they involve official powers could place the president above the law.
So in the hypothetical of a president taking a bribe to issue a pardon, courts would likely have to closely examine which specific actions constitute the criminal offense itself (e.g. the solicitation and acceptance of the bribe) vs. the official exercise of constitutional duties (the issuance of the pardon).
They would then have to determine if the criminal actions can be separated out and prosecuted without unduly burdening or questioning the official acts. This is uncharted and constitutionally fraught territory.
Ultimately, I believe a strong case can be made that the actual criminal act of bribery could be prosecuted after a president leaves office, even if carried out in connection with an official power. The bribe itself is the crime, not the subsequent pardon.
But reasonable legal minds disagree on this complex issue given the lack of direct precedent and the profound implications for the balance of power between the branches of government. Hence the challenging debate and deliberations at the Supreme Court to try to find the right constitutional balance.
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