Three state attorneys general are urging the U.S. Supreme Court to establish a legal test to determine the boundaries of presidential immunity.
Ohio Attorney General Dave Yost, along with his counterparts from Alaska and Wyoming, Treg Taylor and Bridget Hill respectively, have jointly submitted an amicus brief in support of former President Donald Trump’s appeal for immunity against federal criminal charges.
They believe that setting a test is necessary due to the potential for future criminal and civil prosecutions.
The brief argues that by establishing constitutional guardrails to guide future legal proceedings, defining the extent of presidential immunity now is crucial.
Ohio Attorney General Dave Yost expressed his concern over the special counsel’s recent behavior, stating that the special counsel is now boasting about the unprecedented act of criminally prosecuting a president. Yost emphasized that this sets a dangerous precedent, as it opens the door for future cases where prosecutors may target high-ranking officials. He also noted the normalization of impeachment, suggesting that this trend could extend to criminal charges against heads of state.
The Supreme Court has recently taken up the important question of whether a former president can be held criminally liable for their actions while in office. This case will determine the level of immunity that a former president has when it comes to prosecution for conduct related to their official duties.
According to Yost, the framers of the Constitution recognized the importance of providing the president with some level of immunity from criminal charges in order to uphold their oath of office. While this immunity is extensive, it does have its limits. Yost emphasizes the need for the Supreme Court to provide clear and reliable guidance on this matter, as it is crucial for the nation’s stability and governance.
The Attorneys General (AGs) have put forward a proposal outlining a two-factor legal test for courts to consider when addressing matters of presidential immunity.
The test should assess the degree to which an alleged criminal action is connected to the president’s fundamental powers under Article II of the Constitution. It should analyze the relationship between the action and the president’s official duties. The stronger the connection between an action and a core presidential power, the more compelling the argument for immunity.
The brief argues that the president’s actions were warranted based on the urgency of the situation. It suggests that during times of heightened urgency, like war, the president should have a greater degree of immunity.
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