The Supreme Court’s immunity ruling this week makes the hypothetical scenario raised during oral arguments — in which a president can’t be prosecuted for murder — well, possible.
The crux of the issue, legal scholars said, is that the decision granted total immunity for any actions a president takes using the “core powers” that the Constitution bestows on the office. One such power is the authority to command the military. He accused Sotomayor and the other two dissenters of “fear mongering on the basis of extreme hypotheticals.”
Richard Fallon, a constitutional law professor at Harvard Law School, argued the ruling does not leave presidential power completely unchecked. Lawless presidential conduct can still be prevented or unraveled by other parts of the Constitution — for instance, if a president illegally imprisoned a political enemy, that person would be entitled to a court order to go free.
“The only thing that the law can do is impose criminal punishment,” he said — but the president would be immune. A lawless president, however, could get around that problem by promising to pardon anyone who carried out his orders.