By Rabbi Binyamin Silver, Esq.
In a landmark decision this past week, the Supreme Court issued a ruling with respect to criminal immunity for a president. Not surprisingly, the ruling was issued directly along party lines with the six conservative justices developing a logical framework for presidential immunity and the three liberal minded justices issuing a scathing dissent full of hyperbole and predictions of the demise of democracy.
Without reviewing the Court’s full analytical framework, I simply note that the majority of opinion is based on the notion that there is a strong public interest in providing the President with the maximum ability to deal fearlessly and impartially with the duties of his office and fear of criminal prosecution would have a chilling effect on the President’s ability to act. As Justice Roberts put it “the system of separated powers designed by the Framers has always demanded an energetic, independent Executive.”
In other words, the primary basis of absolute or presumed immunity is concern that if the President is forced to operate under fear of prosecution, he will not properly and freely carry out his duties.
Remarkably, under Jewish law, the top executive—the King, is also granted immunity. The Mishnah in Sanhedrin further elucidated by the Gemara (Daf 19) explains that the basis for the grant of immunity to the King is an episode that occurred with Yanai Hamelech. Yanai was summoned before the court by Shimon ben Shetach and out of fear, none of the Judges on the court would rule against Yanai. The story continues with Shimon ben Shetach asking G-d to exact vengeance upon the Judges for failing to faithfully carry out their judicial responsibilities. The story concludes with the Malach Gavriel making an appearance and killing all of the Judges. The Gemara then declares: at that time they determined that a king cannot judge or be judged.
Setting aside the intriguing tale, it emerges from the Gemara that the underlying basis for the grant of immunity to a King is fear that the judicial system will malfunction and be unwilling to convict or rule against the King. It is interesting to note, that this logic is the exact opposite of the Supreme Court’s logic.
The Supreme Court granted Presidential Immunity out of fear that the President would be constrained and ineffective in his responsibilities as chief executive; Whereas, the Gemara’s grant of Royal Immunity stems from the concern that the court would be constrained and ineffective in their responsibilities of rendering justice. Apparently, the Gemara was not bothered by the potential chilling effect prosecution may have on the King.
While the differing logic may be attributable to the substantial variation in powers vested in a King under a Monarchy system of government as opposed to the powers vested in a President under a Democracy and separation of powers system of government, perhaps we can suggest an alternate approach.
Perhaps, the Gemara did not entertain the concern of a chilling effect on the King because it was presumed to be axiomatic that a leader would lead without concern for self. Once upon a time leaders stood for something greater than themselves, and the notion of self-sacrifice was a central feature of leadership. History is replete with great generals that literally led their troops into battle, placing themselves first in harm’s way. Leaders of old understood that there is no room for selfish calculations, it is all about the Klal. Accordingly, there is no room for concern that fear of personal prosecution would somehow jeopardize the King’s ability to be an energetic and independent executive.
Alas, like many good old-fashioned qualities, genuine altruistic leadership has disintegrated. Thus, the Supreme Court’s argument of a potential chilling effect on the President, as sound as it may be, reflects the reality of our times—a time when self-interest dominates all areas of thinking, even for the most powerful man on planet earth. n
Rabbi Binyamin Silver, Esq. is the rabbi of the Young Israel of Long Beach, a picturesque and growing year-round community minutes from Far Rockaway and the Five Towns. Rabbi Silver may be reached at rabbi@yilb.org.