With increasing and troubling frequency, an argument is being made that former presidents should be presumptively shielded from criminal investigation and prosecution unless it is all but certain that a jury would return a conviction — a much higher bar than applies to anyone else. The argument amounts to a claim that — regardless of the nature of the crime — a former president should be above the law and beyond its reach. It’s one thing to debate the case-by-case wisdom of prosecuting a sitting or former president. It’s another to let that debate bring about the destruction of the very system — our constitutional democracy — that makes possible this, and every, public debate. Yet that’s exactly what I fear might be taking place in what would be an unforgivable failure of nerve, a monumental failure of courage.
We may be witnessing a silent and ill-considered extension of the pernicious myth based not on our Constitution but on a mere memo the US Attorney General’s Office of Legal Counsel released in 2000 which concludes that sitting presidents are immune from criminal prosecution.
I’ve previously questioned the correctness of that notion, but what is at stake if we implicitly extend presumptive immunity to those no longer holding public office is categorically different, far harder to defend, and far more dangerous.
We need to begin with the fundamental precept that not all crimes are created equal. Those crimes — regardless of who allegedly commits them — whose very aim...
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