Unnatural Immunity

Trying, and failing, to make sense of the senseless.

Obviously, the word “immunity” is on the lips of the American populace this week as a former president’s lawyers argue before the Supreme Court that the president in question is ipso facto exempt from any and all consequences of all official actions performed during his presidency. As has been asserted by his lawyers, such immunity would extend to selling nuclear secrets to a foreign power or assassinating a domestic political rival.

The word also played a role during the Trump administration, when a novel virus ripped through the nation, a virus for which none of the population had “natural immunity.” Trump downplayed the danger as long as possible, preferring to fight the coronavirus with happy talk instead of science.

The results were to be expected.

I’d never thought of the twin uses of the word “immunity” until this week, when their relationship led me to seek its etymological history.

Turns out, there’s a straight shot from the word’s origins to today’s usage. Initially, immunity was immunis, and referred to returning Roman soldiers, who were temporarily released from tax debt owing to their service. “In” or “Im” refers to “not” and “munis” refers to a “duty,” the obligation of a citizen, which would include paying taxes. So “immunis” means somebody free from the duty of paying taxes.

Immunity grew to encompass one’s freedom from all manner of liabilities. That surprised me; I thought the medical usage of the term would have predated the legal, but the opposite is true. “Immunity” as a medical term didn’t arrive until the late nineteenth century.

While the concept of medical immunity was known as far back as 430 BC, when the historian, Thucydides, noted that those who survived an initial infection of the plague then sweeping through Athens were less likely to become reinfected. The use of the actual word “immunity” to describe an exemption from disease didn’t appear in the medical literature to describe “protection of disease” until 1879

Speaking of corrupt institutions… .

The word has a sort of magic to it, as if those able to deploy it in either a legalistic or medical sense are, somehow, separate from the natural order of things. When one has immunity against a devastating illness, for example, one carries an almost godlike power - that which befell thee shall not befall me!

Legal immunity is also magic. No wonder the former president is fighting so hard for it; for him, it’s a “get out of jail free” card. The type of immunity Trump is arguing for extends even further, however, granting him a status above all other American citizens, a status in which his title alone confers upon him an extraconstitutional right, namely the right to do whatever the hell he wants whenever the hell he wants to do it. It’s the “I could shoot somebody on Fifth Avenue and get away with it” braggadocio alchemized into the legal corpus.

It sounded nuts when he made the argument as a candidate. It sounds downright unhinged when he makes it as a former president.

As a student, I learned that America itself was founded to reject this sort of godhead leadership. Now we’re going to return to it because a human whoopie cushion doesn’t care for personal accountability?

It makes no sense.

Worse, wouldn’t this form of immunity open the body politic to a far worse disease? How does our tripartite system of government operate according to the Founder’s notions of checks and balances when the head of one branch has none? What would prevent a president from assassinating the Speaker of the House? What would prevent a political backer from securing a promise from the president to crush one of their business rivals? Or from simply accepting bribes?

The argument apparently made in the Supreme Court yesterday involved the distinction between official acts committed as the president and personal acts. But when one is president, it’s not like the job ends at 5:00. One continues to perform the duties of the presidency simply by existing. The president is The President all day, every day, for the length of their term. It seems to me that one could make a compelling case that all acts performed during the presidency can be construed as official acts. It is those official acts which Trump seeks to cocoon in the warm blankie of immunity.

While I understand that the Supreme Court has never ruled on the limits of presidential immunity before, yesterday’s oral arguments seemed to suggest that at least a few of the justices are open to broadly expanding its scope.

“I’m not concerned about this case,” said Neil Gorsuch. “But I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”

On its face, that’s a reasonable concern. Surely one doesn’t want presidential motivation litigated every time an administration turns over. Except we’re not talking about that. We’re talking a guy who literally tried to overturn an election whose results displeased him. Moreover, in our 200 plus year history, we haven’t faced the kind of political targeting of former presidents Gorsuch seems concerned about. Nor are we seeing it now.

Despite the incessant Trump whining, the cases against the former president, whether they end up being successful or not, are not without precedent. Lots of people get tried for falsifying business, records, stealing or concealing classified material, obstruction of justice, and election interference. These are hardly novel applications of the law concocted to prosecute one shabby man.

We have arrived at this precarious moment because that shabby man wishes himself to be above the law, and because millions of his followers agree with that proposition. We are here because our faith in our institutions has become so degraded over the last few decades that those who haven’t entirely given up on quaint notions of “fairness” and “equality” no longer trust our leaders to fight for such lofty ideals for anybody but themselves and their friends.

Instead, Americans have become jaded into thinking, correctly, that the law serves best those who can pay to exploit it. For the rest of us, it’s a cudgel to be most heavily deployed upon those least able to resist its power.

In a medical setting, we study those best able to resist disease, hoping to better understand their immunity in order to spread it among as many people as possible. Legally, immunity is almost the opposite. It’s exalted status is generally narrowly-defined and rarely granted because it can be so readily abused. Presidential power is already so vast that adding immunity on top of it would make the office, essentially, monarchic. Or dictatorial, depending on the outfit our commander in chief chooses to wear.

In one sense, Trump is a traditionalist when it comes to the concept of immunity - he also doesn’t pay taxes.

Look, I don’t know where SCOTUS will land on this question any more than anybody else. The fact that at least a sizable minority of the Court even appeared to have some sympathy with the notion of blanket presidential immunity is, however, alarming. Is that really where we want to go? Even if we don’t, is there any escape?

NOTE: I am obviously not a legal scholar, so please keep in mind that the above analysis comes from an acknowledged idiot.