Does McCarthy have a point?

Presidential Immunity doesn't make sense, or does it?

McCarthy make that point that when considering these types of matters the plausible worse case angles are usually pushed by opposing attorneys. If you rule this way, then this will happen, followed by if you rule that way, then that will happen.

But what are the actual worse case results and what sort of cases become "plausible" in the situation of Presidential immunity. Prosecutors argue that if you provided Presidential immunity, then a President could order the Navy Seals to carry out a hit against a political opponent. Notwithstanding that our Navy Seals would never carry out an illegal order and the concept is way out in left field; the reality is there are some things we have in our legal system that simply are not perfect and sometimes don't work as some might like.

Imagine, for example, that I commit a murder, but my wife is the only witness; or the prosecutors are stumped but could prove the murder if, just this one time, the court would allow them to subpoena my lawyer or my priest, to whom I’ve confessed. Should we dispense with spousal privilege, attorney–client privilege, and priest–penitent privilege? After all, maybe I didn’t have the SEALs kill a political rival, but my doomsday scenario does involve a gruesome murder. If we don’t bend the rules, I’ll be beyond accountability. I’ll be . . . yes . . . above the law.

McCarthy's point here is that there are sometimes we provide unusual rights (such as spousal immunity or not being able to force clergy to reveal what they heard in confession) that serve a purpose even if they might undermine a criminal prosecution. We have to sometimes have a tradeoff that doesn't always work in favor of the state.

The argument for immunity (as is being suggested) is that if we normalize the prosecution of former Presidents for actions they took as President, where do you draw the line? Throughout our history, Presidents have been given a wide latitude in terms of what they can sort of get away with. Presidents were not worried about being prosecuted for official acts that their political opponents might find corrigible. There was never any idea that one Administration would go overboard to "find" crimes to charge a previous President with. This is largely why the question was never breached.

President Bill Clinton did effectively sell a pardon to the late Marc Rich, then a fugitive financier. It was exactly the doomsday scenario Smith, Pearce, et al. were seeking to evoke: A president is on his way out the door, having served two full terms, and carries out some outrageous abuse of power. As a practical matter, such a president would not be impeached: Being term-limited and by now out of office, he could no longer be removed from power and would already be disqualified from holding presidential power in the future. Consequently, if a court were to find him immune from criminal prosecution, that would mean he’d never be held accountable for his egregious act.

And that’s exactly what happened with Clinton. President George W. Bush’s Justice Department did not prosecute him for bribery or some other honest-services-fraud-type crime dreamt up for the occasion by creative prosecutors.

It is not that Clinton’s eleventh-hour pardons of Rich, a couple of Marxist domestic terrorists, his brother Roger, a member of his cabinet, and sundry rogue characters were not a historically shameful episode. It is not that some of the pardons, Rich in particular, did not smack of a quid pro quo — grist for an indictment when the perp is someone other than the president of the United States. No, it is that on balance, the nation is better served by avoiding the banana-republic corruption of the governing system that would happen if we normalized the prosecution of former presidents. And it is that, when the chief executive acts within the ambit of his executive authority — as a president undeniably does when issuing a pardon — subordinate executive officials, prosecutors, have no business, post facto, trying to turn the official act into a crime by reading the former president’s mind and finding corrupt intent.

Clinton was never charged, because of the wide latitude we provide former Presidents. It would require a clever prosecutor to determine that Bill Clinton did a legal thing as President (pardon) but in a corrupt manner that made it illegal. This is something that our previous Attorney Generals and Department of Justices would never touch with a ten-foot pole. The idea that to charge a former President it would have to be obvious.

So where to draw the line? Prudently in my view, Barr drew it at “meat and potatoes” crime: If a president’s Justice Department is faced with a decision about whether to indict a member of the opposition party, especially when such a prosecution is going to inject law enforcement into political campaigns, then there should be no indictment unless a very serious crime has been committed and the government has very strong evidence to prove it. For the sake of legitimacy, such a politically fraught indictment must involve a criminal offense so egregious that the public sees prosecution as imperative, as driven by the need to vindicate the rule of law, not by the desire to settle partisan scores.

Could you imagine how the elitists of this country would react if the Justice Department had decided to try to jail Barack Obama because there were classified documents in that warehouse in Chicago? There actually were dozens of classified documents taken from the White House and moved to a non-secured "warehouse" by the former President. The exact same thing that Trump is being charged with by rogue prosecutor Jack Smith. Smith is also using the concept of corrupt intent to charge Trump with otherwise legal actions. The exact same thing that was avoided in the Bill Clinton situation (which was markedly more obvious as he literally took bribes for pardons).

We know that Joe Biden leaned on Merrick Garland to find something to charge Trump with. Democrats across the country applaud this and somehow feel that this should be exclusive to the bad orange man. But it won't be. Once these things "start" then it is almost impossible to put the genie back in the bottle. So perhaps this is the time to take a hard look at Presidential immunity. It used to be assumed unless the crime was so egregious that it could not be ignored. Now we literally have people desperately making things up to charge a former President with.

What is even more problematic is the fear from Democrats that Trump would turn the table and do something similar if he wins in November. That he will appoint an Attorney General willing to use the power of the Government in the same fashion as it is currently being used to go after him. This sort of tit-for-tat is not started with the tit, but with the original tat. It's Democrats and Joe Biden wanting to normalize it against Trump, but then want it to stop? I doubt that it will.

Democrats are already worried about more of the same (political charges) happening in return. Isn't that concern the "true" bad precedent that our courts and justices should also be worried about?