The counsel for the defense made repeated reference to the “absolute immunity” of the President’s closest advisers to a House summons by subpoena, with the unstated assumption that this applies to questions directly related to their conversations with the chief executive. Such conversations are privileged, goes the argument, and to make them anything less than confidential damages the President’s ability to get unvarnished advice from his people.
The president’s lawyers went much further than that, however, in extending this “absolute immunity” to the entire executive branch, in ordering total defiance by all said employees to all House subpoenas.
The President’s lawyers went to great lengths to argue immunity for close advisers, and then to cleverly allege that all executive branch personnel are de facto close advisers. Which is a hairy argument to make, and even harder to refute – because it’s so outrageously absurd. Here’s why:
First, let’s look at the meaning of “absolute immunity.” To quote Wikipedia, “Absolute immunity is a form of legal immunity for government officials that confers total immunity from criminal prosecution and lawsuits so long as they’re acting within the scope of their duties.”
The President’s lawyers attempt to say, “All executive branch employees are going to refuse to respond to your lawfully-issued subpoenas. So, go ahead and sue us. We have immunity from all criminal prosecution.”
Which, in a circuitous kind of way, means they don’t have to respond to your stupid subpoenas if they damn well don’t want to. The fallacy of such a position, however, is that in doing so, they’re effectively admitting that they’re guilty of criminal misconduct. And the crime they’re committing isn’t refusing to honor a subpoena. That crime came after the fact.
Imagine yourself a judge. A witness is claiming this absolute immunity crap. He’s already lawyered up, which moves the guilty meter a couple of notches to the guilty side; then he claims absolute immunity, which moves the guilty meter another few notches toward the guilty side. What do you do now?
The President’s Achillies heel is that this absolute immunity only applies to “the scope of their duties.” And, for the absolute immunity to apply, said duties must be illegal. And, in order to receive the court’s blessings, you have to prove that what you did was illegal.
In other words, absolute immunity doesn’t give government employees free rein to break the law just because it was on orders from their boss. Moreover, claiming absolute immunity before the actual charges are even stated (as was the case of the President’s blanket claim of immunity in the fall of 1999) means by definition that you’re as guilty as sin, and to hell with your boss.
In other words, you can claim “absolute immunity” from prosecution only after you have been charged with a crime, at which time you get off the hook by showing that what you did was in the scope of your official duties. At which point, you get off scot-free, but the crime is still there, and that means that whoever made said crime a part of your official duties could be charged, and so forth on up the chain of command.
Practically speaking, “absolute immunity” happens from the bottom up, not from the top down. Only the low man on the totem pole can claim it. It must be claimed one step at a time, not everybody at once. This means that the President cannot claim a blanket type of immunity for his entire executive branch. Each individual from the lowest pay grade on up must fight to assert blanket immunity, and win the case until the entire executive branch can claim such blanket immunity.
But – the President did allege blanket immunity. What does that mean? In order to qualify for this kind of blanket immunity from criminal prosecution, everybody in the executive branch must have committed a crime – otherwise, they wouldn’t be able to assert this blanket immunity. And, again, the crime they are claiming blanket immunity from is not refusing to honor a subpoena because that happened after the fact. Still don’t get it?
Let’s say our fictional judge put all his ducks in a row, and charges all the entry-level civil servants; they lawyer up and claim immunity – admit to the crime in their official duties – and so on, further up the food chain, as each pay grade does the same thing, passing the buck up to the next level as they’re declared immune from prosecution and set free.
Etcetera until we reach the oval office and the President’s senior advisors who enacted said criminal orders that made all their underlings commit a statue crime. All of these crimes and the “abuse of power” associated with forcing loyal, faithful, career government employees do criminal acts accumulate – the weight of the criminal act gets heavier and heavier the higher up the chain of command it gets.
Misdemeanors become high crimes, which become “abuse of power,” and eventually criminal conspiracy, and when it reaches the very top, “treason.”
That’s what happens when you attempt to claim blanket immunity from prosecution. That’s the law.