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Trump v. United States, the presidential immunity opinion, dropped this morning. In broad strokes it goes like this:
1. For those acts that are pursuant to the President's "conclusive and preclusive" authority there is absolute immunity.
2. For those acts which are official acts by the President but not covered by (1) there is a presumption of immunity that can only be overcome by showing the prosecution would pose no "dangers of intrusion on the authority and functions of the Executive Branch."
3. For those acts which are unofficial there is no immunity.
4. Those acts for which the President has immunity cannot be used as evidence to demonstrate any element of a crime for which the President would not have immunity.
I think it's just incredible that the six justices in the majority looked at the Navy-SEALs-assassinate-a-rival hypothetical and went "yep, sounds right, no liability." Roberts' majority opinion even mentions the President's orders to the armed forces as one of the things that falls under (1).
I think the way is clear. Biden orders Trump, the six justices in the majority, and let's say the next 2-3 top Republican candidates whacked (just for safety). He probably gets impeached and removed but can't go to jail (thanks SCOTUS!) Harris takes over as President and I think it's unlikely she would also get impeached. Dems don't want to hand the presidency to Mike Johnson. That gives Harris plenty of time to stack the court. Republican convention in disarray due to the deaths of their prominent candidates. Biden obviously out, he'd be ineligible anyway if impeached and removed. Dems probably dump Harris to create a clean break with Biden admin, clearing the way for Whitmer/Newsom/Pritzker/whoever.
The above is fan fiction, of course.
Others have done an exhaustive job of responding to your vibrant hypothetical. I'll just add that yes, you're right in general (regarding other fact patterns that aren't quite so dramatic) that there is some increased risk of presidents misbehaving if they are above the law, and there is a cost associated with that.
But there is also a cost associated with presidents facing criminal charges after they step down. Peaceful transfer of power is a remarkable thing that we shouldn't take for granted. You really don't ever want a president nearing the end of his term to have to decide between sacrificing himself to the criminal justice system or attempting an auto-coup. That is a much bigger risk, and cost, and the law should focus on mitigating that second risk over the first.
He would only face that choice if he were protected from prosecution while in office, which he should not be.
So then any DC prosecutor with a taste for power can try making his bones by filing grand jury indictments against the President. Even if they’re frivolous charges, the President’s staff and lawyers would have to respond, comply with subpoenas, etc. And considering the District of Columbia has such a liberal body politic, Republicans would stand no chance if the case proceeds to a jury trial.
The constant filing of trivial and/or frivolous ethics complaints is what drove Sarah Palin out of the Governor’s office in Alaska. The cost in time and money were a form of legalized harassment, a sort of Denial of Service attack on her ability to govern. Avoiding the same thing happening to the President should be a priority, given that his duties include things like wars, treaties, and emergencies in and outside the country.
Given that those were not criminal prosecutions with the risk of jail time, that is much closer to Jones vs Clinton (where SCOTUS ruled that lawfare against a sitting President was just fine) than United States vs Trump.
But once criminal prosecution and jail time are on the table for official acts allowed by the Constitution to the President, either in office or once he leaves, harassing lawfare gains teeth it didn’t have before. Hence immunity.
The public interest in preventing harassing lawfare against private citizens (including ex-Presidents) is a lot weaker than the public interest in preventing harassing lawfare against a sitting President.
If Obama had been brought up on criminal charges following his terms (let’s say serially for Benghazi, Gaddafi, and Operation Fast and Furious, off the top of my head), the public would absolutely care.
They’d be worked into riotous fervor by the media: “How dare they try to make the first Black President into a felon! This is a banana republic! Obama did nothing wrong! He was just doing his Constitutionally mandated duties, no matter how things turned out!” And so on, and so forth.
The “public” doesn’t care because the progressives want Trump to die in prison and the conservatives don’t have time in their workdays to go protest.
EDIT: I realize you said “public interest” as in the stakes the country has in each scenario. I disagree, because of the spectre of an end to the peaceful transfer of power, the very thing constantly hung around Donald Trump’s neck re Jan 6.
That’s not a very good analogy. What would be the charges?
I don’t believe Trump is being charged either for his foreign policy, or for his handling of law enforcement.
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