Presidential Immunity and Partisan Primaries
The effort to prosecute Trump criminally is a consequence of the Senate's failure to convict him in the impeachment case, and why did the Senate fail in this? The fear of being primaried.
You might think that the Supreme Court’s presidential immunity decision has little or nothing to do with the need to eliminate partisan primaries in congressional elections, but in fact they are very much related.
The reason so much attention has been focused on the criminal prosecution of former President Trump for his attempt to subvert the outcome of the 2020 is that the Senate failed to convict him in his impeachment trial for the same misconduct. The Senate failed to convict Trump because too many Republican senators feared that voting to convict him would have provoked a challenge from a Trump-endorsed opponent in their next GOP primary.
If all senators ran for reelection in the kind of nonpartisan primary that Alaska now has, where all candidates regardless of party compete against each other—and the strongest candidates advance to the general election, even when that means more than one candidate from the same party—then there very likely would have been enough Republican votes to convict Trump in his Senate trial, and there wouldn’t be any need to rely upon a criminal trial as a means to keep him from returning to office.
Lisa Murkowski, after all, would not have survived a partisan primary challenge by her Trump-endorsed opponent in 2022, and thus might have been tempted to vote against convicting Trump to save her political career. But because in 2022 she was running for reelection in Alaska’s new electoral system, with its all-candidates nonpartisan primary, she was liberated from that electoral pressure and was able to vote her conscience to convict Trump.
In the webinar that Election Law at Ohio State held last week, Kevin Kosar of the American Enterprise Institute emphasized the crucial point that politicians respond to the incentives created by the electoral system in which they operate. The incentive caused by partisan primaries is to avoid being rejected by the party’s “base” voters.
Trump has exploited this incentive by threatening to “primary” any Republican who betrays him. Knowing that a majority of the party’s base voters in the primary are loyal to him, Trump forces Republican incumbents to fall in line or otherwise face the wrath of his loyal supporters in the next primary. (The book Rejecting Compromise: Legislators’ Fear of Primary Voters, coauthored by several political scientists, documents this dynamic.)
We saw the implications of this pernicious incentive in the immediate aftermath of the January 6 insurrection. At first, Republican senators like Lindsey Graham were prepared to disavow Trump because of his attempt to seize a second term through violent intimidation. But as soon as they saw that the party’s base voters were sticking with Trump despite the heinousness of his plot to subvert democracy, they snapped back into place.
By the time of the Senate trial on Trump’s impeachment for his role in the January 6 insurrection, just a few weeks later, it became clear that the majority of senators in his party were not going to cross Trump and his loyal supporters and vote to convict him for his role in the January 6 insurrection. Despite Mitch McConnell’s initial expectation that there were enough GOP votes for a conviction, the fear of being primaried was just too great, and McConnell wasn’t willing to go out on a limb as the leader of GOP senators without sufficient support among his own members.
If the incentives had been different, and Republican incumbents had to run for reelection in a system where all the electorate’s voters—moderates and independents, as well as the extreme voters within a party’s base—decide whether or not the incumbent advances to the general election, then these incumbents most likely would have disowned Trump in order to get broader support for their candidacy (or at least would have felt liberated, like Murkowski, to vote their own consciences). Lindsey Graham almost certainly would not have snapped back if South Carolina had an electoral system that rewards moderation in a way similar to Alaska’s.
The key point is that in a well-structured electoral system, without the deleterious incentives of partisan primaries, Trump would have been convicted in the Senate and, upon this conviction, disqualified by the Senate from serving in office again. (The Constitution requires that the Senate take a second vote, after conviction in an impeachment case, to disqualify the impeached officer from further service, but this disqualification of Trump would have been immediately forthcoming after conviction, especially as disqualification was the sole purpose of the impeachment trial given that Trump already had left office on January 20.) Once Trump was disqualified from serving as president again, there would have been no need to pursue criminal charges against him in the hope that doing so would cause his reelection defeat.
The Supreme Court’s immunity decision would be viewed in a very different light if Trump were already disqualified from being president again. First, it is unclear that a DOJ special counsel would have brought criminal charges against Trump for his conduct relating to the January 6 insurrection if he were precluded from being president again. In any event, it seems highly unlikely that the special counsel would have brought conspiracy charges solely against Trump and not his co-conspirators or would have attempted to fast-track the case in an effort to have it tried before the election.
Even supposing the immunity issue would have reached the Supreme Court this term despite Trump having already been disqualified, I don’t think that reaction among Democrats to the Court’s immunity decision would have been as hostile. To be sure, I personally still would have preferred the position of the dissenters, or at least Justice Barrett’s more tempered approach to the facts of this case—recognizing, as she did, that there is “no plausible argument” that Trump could be immune for any criminality with respect to his “attempt to organize alternative slates of electors.” But it’s not illegitimate for the Court’s majority to conclude that the exercise of some “core” presidential functions are absolutely immune from criminal prosecution. (I wouldn’t put the president’s commander-in-chief authority in this absolute immunity category, as the president’s military powers are shared with Congress, which has the constitutional authority to declare war and to “make rules for the government and regulation of the land and naval forces”—and the Court’s theory of absolute immunity for “core” presidential powers rests upon Justice Robert Jackson’s analysis in the Steel Seizure Case that there are some presidential powers with which Congress cannot interfere at all, like the pardon power, and the president’s commander-in-chief powers are not in this category.) Nor is it outrageous for the Court to hold that other official conduct of a president is presumptively immune from criminal prosecution, but his presumptive immunity can be overcome upon a showing that a prosecution for particular conduct—like pressuring the Vice President to reject valid electoral votes cast for the president’s opponent—in no way endangers the legitimate functions of the Executive Branch.
What’s troublesome about the Court’s immunity decision vis-à-vis Trump specifically is not that it immunizes Trump’s effort to subvert Biden’s valid victory—because it doesn’t (apart from its specific ruling that Trump can’t be prosecuted for his attempt to get the Department of Justice to support his scheme)—but that it prevents a trial of Trump’s culpability before the election. But this delay is problematic only from the perspective that a pre-election trial of this case was seen as necessary to persuade voters not to vote for Trump.
However much we may consider Trump’s potential reelection as a threat to American democracy, we should be troubled by any criminal prosecution pursued in an effort to influence the outcome of an election. I see no way to view the effort to expedite the criminal case against Trump as anything other than endeavoring to persuade voters that Trump is unfit for office before they cast their ballots.
Whether one agrees or disagrees with me on this point, the issue would be moot if Trump’s impeachment had been successful in disqualifying his reelection, as it should have been. (It also would be moot if Congress had enacted a statute to enforce the Constitution’s disqualification clause in section 3 of the Fourteenth Amendment, as I repeatedly argued in 2021 and 2022 that Congress should have.)
Ultimately, the simple truth is that the country is currently in a precarious position because Trump’s impeachment failed in the Senate, and it failed there because of partisan primaries.
The incentives that partisan primaries impose upon incumbents are, as Kevin Kosar observes, another powerful reason to vigorously pursue electoral reform that would eliminate partisan primaries (in addition to those articulated in a previous Common Ground Democracy essay).
Thus, rather than lamenting the Court’s immunity decision, one should view it as a reminder of the need to redouble efforts to achieve the electoral reform that would enable the impeachment power to return to its proper constitutional role of protecting against a rogue president.