How the Left’s Argument Against Presidential Immunity Could Backfire in a Big Way Against Obama

The Left is famous for changing political rules as they go, with little thought on how today’s decisions could impact Americans tomorrow. For example, in 2013 the Left succeeded in changing the Senate filibuster rule to allow judicial nominees to be confirmed with just 51 votes instead of the standard 60. Then from 2017 to 2020, Supreme Court Justices Gorsuch, Kavanaugh, and Barrett were all confirmed under the new rules, with Neil Gorsuch receiving the most votes with just 54. Talk about a backfire.

If the Left is not careful, a similar scenario could eventually arise from Special Counsel Jack Smith’s argument to the U.S. Supreme Court against presidential immunity, and it could put former President Barack Obama in a most unlucky spotlight.

Currently, the legal doctrine of presidential immunity, though not explicitly stated in the Constitution, covers actions of the President that relate to official duties of the office, which protects Presidents from personal liability after they become a private citizen again – they have immunity. But suppose the Left has its way and Trump is allowed to be criminally prosecuted for perceived crimes committed while he was in office. In that case, the legal door will theoretically be jarred open to prosecute any future or former Presidents, including Obama.

Why is our 44th President at the top of our minds? Recent reports claim President Obama’s CIA illegally targeted at least 26 Trump associates to help frame the “Russian collusion” narrative in the months leading up to the 2016 presidential election. The then-director of the CIA, John Brennan, allegedly spearheaded the operation. We already know the FISA court was manipulated to spy on Trump. Since Brennan’s close operational relationship with Obama is well-known, he unlikely did anything without Obama being aware of it. Given currently swirling news stories, even President Biden might not be loving the new rule Jack Smith is asking the Supreme Court to bless.

Before, Obama (like all Presidents) was presumed to be protected from legal liability from any “official” decisions he made as President. But now, under Jack Smith’s proposed rule changes, a prosecutor could ask, “What did Obama know, and when did he know it?”What would prevent this line of questioning?

However, another quieter motivation may also be at play from the Left’s push to abandon presidential immunity. It could have an intended chilling effect on the decision-making process of whoever occupies the Oval Office. Every national security or policy decision that involves the well-being of Americans would be made by a President worried about a possible post-presidency prosecution. How a President would do their job would change forever.

The Left knows this, and they might see it as an extra set of manufactured checks and balances for a potential second Trump term, when all his decisions would be free of reelection concerns. Without clear presidential immunity in place, Trump’s declassification powers could be legally catastrophic for the Left – and Obama. Talk about an even worse backfire!

Ultimately, the Left must understand it’s playing a very dangerous game. Like the Senate filibuster, any new rule that applies to the current President applies to all. However, unlike Senate voting rules, reversing or undercutting established legal precedence from the Supreme Court on presidential immunity is much more difficult. It could eventually become open season for partisan legal harassment. And that’s a third-world-level playbook that the Founders never intended.

That’s why the ACLJ remains committed to protecting the constitutional rights and civil liberties of every American and every American President. We just filed an amicus brief at the U.S. Supreme Court regarding this need to preserve presidential immunity.