Like pretty much every other media source, The Federalist has a bias, and I don't trust the summaries of their writers. Because their goal, like everyone else's, is to get clicks. And they throw red meat to get them.
The President should NOT have immunity for unlawful acts, because unlawful acts CANNOT be official acts.
I think that's wrong, and glosses over the reality that what constitutes an illegal act is often very much a gray area, and in dispute. For example, almost any action a President takes during wartime could be spun as a "crime" by political opponents -- ordering a bombing in which some civilians are killed, for example. I can hear it now "Murder cannot be an official act!". So now, any action the President takes as Commander in Chief subjects him to criminal prosecution by a successor administration. Is that a tenable way to run a country?
That cannot be the law.
Just consider this: What is "immunity", if not something that protects someone from prosecution of what might otherwise be considered a crime? Because if the argument is going to be "immunity doesn't apply if a crime has been committed", then the entire concept of immunity has no purpose.
What is "immunity", if not something that protects someone from prosecution of what might otherwise be considered a crime? Because if the argument is going to be "immunity doesn't apply if a crime has been committed", then the entire concept of immunity has no purpose.
First, we have to look at the hierarchy of precedent: The Constitution, the laws passed by Congress, the Supreme Court's ruling on the constitutionality of the laws.
In the case of the President, first there is the "take care" clause in Article II Section 3 that "he shall take Care that the Laws be faithfully executed." This is the baseline expectation of the office, that the President is expected to "faithfully execute" the law. Executing laws in a fraudulent or self-serving way would be faithless and outside of the President's official acts.
In the case of presidential immunity, I've written before that the President is the only office in the Constitution that did NOT have an explicit immunity written for it.
SCOTUS had to find that the President had implied immunities for official acts because Congress had immunities for official acts IN THE CONSTITUTION (Article I Section 6) and the Supreme Court had immunity IN THE CONSTITUTION (Article III Section 1) for "good Behavior." The Commander-in-Chief had to have similar immunities for official acts, too, otherwise the other branches could use their immunities to gang up on the Executive.
But, just like the Congressional immunity has exceptions (Treason, Felony and Breach of the Peace), and the Supreme Court immunity has exceptions ("bad" Behavior), so to does the President's immunity have an exception (he shall take Care that the Laws be faithfully executed).
-PJ