Donald Trump’s Bid For ‘Absolute Immunity’ Is His Most Dangerous Argument Yet

Former President Donald Trump is trying to quash his indictment for the attempt to steal the 2020 election by arguing before a federal appeals court that presidents have an “absolute immunity” from criminal prosecution, even after leaving office.

Trump’s claim of absolute immunity comes in the federal case charging him with four felony counts related to his efforts to overturn his reelection loss that led up to the Jan. 6, 2021, insurrection. The former president also faces a state prosecution in Georgia over attempts to steal the state’s election, a federal case related to illegally taking classified documents, and a trial in New York over hush money payments to a porn actor.

In his appeal in the federal election theft case, Trump makes two arguments. The first is that he has permanent absolute immunity from criminal prosecution for any acts undertaken during his presidency. The second is that under the theory of double jeopardy, he cannot face criminal charges for acts upon which he was impeached but not convicted.

“The structure of our government, the text of the Constitution and its early commentators, common-law immunity doctrines, our political history, the Supreme Court’s analogous immunity doctrines, and the policy considerations rooted in the separation of powers all dictate that no President, current or former, may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate,” Trump’s appeal brief states.

But his arguments run counter to centuries of judicial precedent and constitutional interpretation, as well as the intent of the Constitution’s authors and the very conception of the United States as a democratic republic governed by the rule of law enshrined in a constitution.

Aside from flying in the face of the nation’s history and system of government, both of Trump’s arguments would create perverse incentives for presidents to break the law to stay in office, and for their partisans in Congress to immunize them from criminal prosecution by impeaching but not convicting them.

Former President Donald Trump wants a court to give him "absolute immunity" from criminal prosecution as he faces four felony charges over his attempt to steal the 2020 election.
Former President Donald Trump wants a court to give him “absolute immunity” from criminal prosecution as he faces four felony charges over his attempt to steal the 2020 election.

Alon Skuy via Getty Images

“The defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” Justice Department special counsel Jack Smith argued in a brief filed with the appeals court last week.

Under this theory, a president would be immune from prosecution if they directed “the FBI Director to plant incriminating evidence on a political enemy” or instructed “the National Guard to murder his most prominent critics,” according to Smith’s brief. And a president could avoid an impeachment conviction by “inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully.”

Taken to its most extreme logical conclusion, the theory would allow President Joe Biden to abduct Trump and hold him in a black site prison or kill him, and potentially face no legal consequences, as HuffPost’s S.V. Date writes.

Trump’s argument for an absolute immunity for ex-presidents rests on two main points. Firstly, courts and Justice Department legal guidance state that sitting presidents are immune from prosecution, as it would interfere with their constitutionally required duty to “take Care that the Laws be faithfully executed.” The second is former presidents’ absolute immunity from civil liability for official acts taken while in office, as ruled by the Supreme Court’s 1982 decision in Nixon v. Fitzgerald.

In pitching his case, Trump tries to blur the difference between a sitting and a former president, between civil and criminal liability, and between official and unofficial acts. But these are not the same thing.

First, there is significant historical and judicial evidence that sitting and former presidents are treated differently. While sitting presidents are granted numerous prerogatives of office, including executive privilege and protection from prosecution, former presidents are not — and were never conceived to have been.

“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law,” Alexander Hamilton wrote in The Federalist Papers in 1788 to argue in support of the impeachment clause as written in the Constitution.

Not two decades later, Chief Justice John Marshall expressed this same sentiment in the case of United States v. Burr, in which former Vice President Aaron Burr had been prosecuted on charges of treason: “The president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.”

President Gerald Ford pardoned predecessor Richard Nixon in 1974 for "for all offenses against the United States which he … has committed or may have committed or taken part in."
President Gerald Ford pardoned predecessor Richard Nixon in 1974 for “for all offenses against the United States which he … has committed or may have committed or taken part in.”

Tom Williams via Getty Images

And even without reaching back to the founding generation, the common practice in the modern era of politics is equally instructive on this point.

After resigning from office in 1974, former President Richard Nixon received a “full, free, and absolute pardon” from Gerald Ford, his successor, “for all offenses against the United States which he … has committed or may have committed or taken part in,” effectively acknowledging the threat of prosecution. Nixon faced the possibility of federal and state indictments after crimes were uncovered in the Watergate investigation.

More recently, in the late 1990s President Bill Clinton faced the prospect of criminal indictment after leaving office for making false statements under oath during his deposition in the Paula Jones case, in which Jones accused him of sexually harassing her. On his final day as president, Clinton reached a deal with the independent counsel in which he would admit to giving false testimony in exchange for the counsel not pursuing charges.

Similarly, recent Supreme Court decisions provide strong evidence that ex-presidents are not immune from criminal prosecution.

“In our system of government, as this Court has often stated, no one is above the law. That principle applies, of course, to a President,” wrote Justice Brett Kavanaugh in a concurring opinion in the 2020 case of Trump v. Vance, regarding the power to subpoena a president’s financial records.

In a dissent in the Vance case, Justice Samuel Alito agreed that “criminal prosecution … is a consequence” for potential criminal behavior by a president following the conclusion of an impeachment trial.

Ex-presidents do have one significant protection when they return to “the mass of the people”: the absolute immunity from civil liability suits for official acts taken while in office.

One reason that the court provided this immunity was to prevent the threat of future civil liability suits from interrupting the decision-making of a sitting president in undertaking his or her duties. Since anyone can file a civil suit seeking damages, a former president could spend their post-presidency tied up in courts facing endless trials, and their judgment while in office may be hindered by this lingering threat.

However, criminal prosecution is quite different. Charges must be brought by federal or state prosecutors, and there must be an actual alleged crime committed. There are also laws and Justice Department rules prohibiting capricious criminal prosecutions designed merely to harass an individual.

Most importantly, there is a significant distinction between the definition of “official acts” as described in Nixon v. Fitzgerald and the acts described in Trump’s indictment.

In Nixon, the former president faced charges that he and other administration officials had eliminated the position of an analyst for the Air Force in retaliation for the analyst’s congressional testimony, given prior to Nixon’s presidency. The court ruled that Nixon’s action fell within the “outer perimeter” of the president’s official acts, as he had “the authority to prescribe reorganizations and reductions in force.”

David Schoen, a defense attorney for Trump during his second impeachment, argued that the former president could not face impeachment, but should rather be tried in criminal court.
David Schoen, a defense attorney for Trump during his second impeachment, argued that the former president could not face impeachment, but should rather be tried in criminal court.

On the other hand, Trump’s claim that his actions surrounding the 2020 election fell within the outer perimeter of a president’s official acts is patently absurd. These actions were taken in connection with his reelection campaign, which, by definition, cannot be official presidential acts.

When Trump filed a motion to intervene at the Supreme Court in Texas’ lawsuit to overturn the election, he did so “in his personal capacity as candidate for re-election.” His lawyers Rudy Giuliani and Jenna Ellis were not government lawyers, but rather funded privately through his campaign. His alleged accomplices in organizing fake elector slates to disrupt the electoral vote count on Jan. 6, 2021, were also campaign staffers, paid for by campaign funds.

Trump’s second argument, that he cannot face criminal indictment for actions upon which he was impeached but not convicted, stands on similarly specious grounds.

The Constitution states that punishment for a president convicted in the Senate “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The entirety of Trump’s argument rests on the fact that the text states that “the Party convicted” can be criminally indicted, but doesn’t say anything about a president who is acquitted. Trump claims that criminally prosecuting a president who was impeached but not convicted by the Senate effectively amounts to double jeopardy, which prohibits anyone from being tried twice for the same alleged crime.

Like Trump’s assertion of absolute immunity, this argument is undermined by statements of the Constitution’s authors and the existing historical record.

“Far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment,” said James Wilson, a participant in the Constitutional Convention, at Pennsylvania’s ratifying convention in 1787.

That sentiment has played out in practice, as seen in the Nixon pardon and Clinton’s deal to avoid criminal charges. Clinton’s case is particularly instructive as he, like Trump, was impeached by the House and acquitted by the Senate — and still reached an agreement that prevented his indictment.

In fact, during Trump’s 2021 impeachment trial for instigating insurrection on Jan. 6, his lawyer David Schoen argued that the impeachment was not necessary because the standard criminal justice system could handle such issues for a former president.

“We have a judicial process in this country,” Schoen said. “We have an investigative process in this country to which no former officeholder is immune. That is the process that should be running its course.”

And when Senate Minority Leader Mitch McConnell (R-Ky.) justified his vote to acquit Trump during the impeachment trial, he did so by arguing that the judicial system was the proper arena to adjudicate complaints against former presidents.

“President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run,” McConnell said on the floor of the Senate after Trump’s acquittal. “[He] didn’t get away with anything yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”

The U.S. Court of Appeals for the D.C. Circuit is set to hear arguments in Trump’s case Tuesday.

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