Vance says presidents must have immunity, though possibly not Biden

Sen. J.D. Vance (R-Ohio) is seen in the spin room in Atlanta on June 27, 2024, after former President Donald Trump and President Joe Biden's debate.

Sen. J.D. Vance said Sunday a president must have immunity from prosecution for his actions in office while also saying that it would be up to a future "Attorney General" to determine whether to prosecute President Joe Biden for unspecified criminal activity.

When asked by "Face the Nation" host Margaret Brennan as to whether the Justice Department of a possible next Trump administration might charge Biden, Vance (R-Ohio) said: "First of all, that would be the responsibility of the Attorney General, Margaret. But Donald Trump did not say that he's trying to throw his political opponent in jail."

In response to a subsequent Biden prosecution question by CBS' Brennan, Vance said: "I want people who commit crimes to face the appropriate response in law," before adding: "The problem that I have Margaret is not with which Democrats should prosecute which Republican and vice versa; it's let's get out of the prosecuting of people based on their politics."

The Supreme Court is expected to rule Monday in Trump v. United States on a claim by Trump that presidents are immune from prosecution for what they do or have done in office. "I'm very confident," Vance said Sunday, "that the fundamental principle here is the President's got to be able to do his job in the same way that police officers, judges, prosecutors, enjoy some immunity, that principle has to apply to the president too."

Before Trump, no former president had been indicted for what they did while president, which is why the question of "immunity" is a new issue both before the Supreme Court and in the court of public opinion. Trump has cited the example of President Harry Truman deciding to drop two atomic bombs on Japan in order to end World War II as something that could not have been done without immunity, though there's no indication that came up in August 1945 or during Truman's successful run for a full term as president in 1948.

"Immunity" is not mentioned in the Constitution itself. Though supportive of justices ruling based on the specific language of the Constitution, Trump has argued that immunity is both implicit in the text and necessary, a view that Vance supported.

"We know that the President has to have immunity to do his job," Vance told Brennan. "Should Barack Obama be prosecuted for droning American citizens in Yemen? There are so many examples of presidents Democrats and Republicans who would not be able to discharge their duties, if the Supreme Court does not recognize some broad element of presidential discretion."