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Why Trump’s Presidential Immunity Defense May Just Lead To An Election Indictment Dismissal

Trump is arguing that presidents, even after their term is over, are absolutely immune from criminal prosecutions arising out of their acts in office.


Thursday afternoon in a Washington, D.C., federal court, former President Donald Trump filed a motion to dismiss the case pending against him there for his alleged actions in the aftermath of the 2020 election. The motion cites presidential immunity as a ground to dismiss the case in its entirety.

The motion persuasively argues that the D.C. case should be dismissed, and if past practice is any guide all proceedings could and should be stayed while this issue is litigated fully, all the way up to the Supreme Court if necessary. Notably, this same reasoning should apply to the ongoing Georgia prosecution as well. A number of legal commentators have anticipated this move and have stated from the outset that presidential immunity should be an absolute bar to the prosecution of Trump for his alleged acts in office that underlie the federal prosecution in D.C.

1. What Is Presidential Immunity?

In essence, President Trump is arguing that presidents, even after their terms in office are over, are absolutely immune from criminal prosecutions arising out of their acts in office that fall within the “outer perimeter” of their official responsibilities as president, unless they have first been both impeached and convicted by the House of Representatives and Senate.

He is arguing that all of the acts he is alleged to have committed fall within this absolute immunity. This view, as the motion filed Thursday makes clear, is deeply rooted in bedrock legal principles, in caselaw, in the Constitution, and in actual practice dating back centuries.

In Nixon v. Fitzgerald, the Supreme Court ruled that a president has absolute immunity from civil liability for acts within the outer perimeter of his official responsibilities. In short, you cannot sue a former president personally because his official acts harmed you. This is an unquestioned Supreme Court precedent, based on very serious, core separation of powers concerns.

If a president were susceptible to civil suit for his official acts, the court held that this would “raise unique risks to the functioning of government” in light of the “singular importance of the President’s duties.” The purpose of presidential immunity, in the Fitzgerald court’s view, is to prevent concerns about being sued clouding the president’s judgment and crippling his ability to act. Presidents need to be able to discharge their duties to the best of their abilities without having to worry about being hauled into court when their terms expire.

In fairness, this well-established immunity doctrine has never been tested in the criminal context, for the simple reason that no president has been subjected to the sort of relentless prosecutions that President Trump has now been faced with, but the motion persuasively argues that the reasoning in Fitzgerald should still apply, noting for example that judicial immunity, which is structurally similar, applies in both criminal and civil contexts.

2. The Impeachment Clause

This view is also rooted in the actual text of the Constitution. The impeachment clause of Article I provides that, although impeachment proceedings do not themselves carry a punishment beyond removal from office, a party convicted after impeachment, “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

By specifying that a president impeached and convicted could be subject to indictment, etc., the Constitution plainly and clearly implies that absent impeachment and conviction a president cannot be criminally prosecuted for his official acts. Democrats impeached President Trump twice, and on both occasions the Senate acquitted him. Absent a conviction at an impeachment trial, presidential immunity applies to all of President Trump’s acts that fall within the outer perimeter of his official responsibilities, and for these acts at least he cannot be prosecuted.

3. What Is the Scope of Presidential Immunity?

If we accept that presidential immunity applies in the criminal context, the key question is whether the acts that underlie President Trump’s indictment in D.C. fall within this “outer perimeter” of his official responsibilities as president. I think the answer is clearly yes.

First, it is very important to note that in the context of assessing immunity, the motive of a president is irrelevant. Why the president did something is immaterial; the question is what the president is alleged to have done and whether those acts were within this very broad outer perimeter of his official responsibilities. And because the scope of presidential authority and of presidential responsibilities is so vast, the catchment of presidential immunity is similarly expansive.

When you actually review the alleged acts that underlie the D.C. indictment, my view is that each and every one clearly falls within the outer perimeter of President Trump’s official responsibilities. These acts include:

  1. Making public statements about the administration of the 2020 federal election. Courts have consistently held that communicating to the public about matters of national concern is well within the scope of official governmental duties. It is tough to see then how making public statements about the administration of a federal election would not fall within at least the outer perimeter of the president’s official responsibilities.
  2. Communications with public officials, both state and federal, about the administration of the 2020 federal election. Instructing his own Department of Justice to do more to enforce the law as he saw it was clearly within the ambit of President Trump’s presidential responsibilities, and appointment of governmental officers is a presidential responsibility entrusted to the president by the Constitution itself. The same is true of communications with state officials. The president has a constitutional obligation to ensure the integrity of federal elections; communicating with the state officials responsible for election administration at various stages therefore easily falls within the outer perimeter of the president’s official responsibilities. It is tough to see how the president urging Congress and the vice president to take certain legislative acts would not constitute an act within his official responsibilities. Trump’s motion even points to the interesting historical analogy of President Grant’s actions in the wake of the election of 1876, where he communicated with Congress directly about electoral count issues and problems with voter fraud in a number of states.
  3. Taking steps to allow Congress and the vice president to take action on the federal election fraud that he believed occurred. Although the indictment makes much of President Trump’s attempts to corral alternate slates of electors in key states, these acts are, as President Trump’s motion details, best considered as ancillary and preparatory to President Trump’s efforts to get Congress and the vice president to take action on what he viewed as outcome-determinative federal election fraud. The courts have long recognized that acts that are performed within a continuum with immune acts are also subject to immunity. 

Remember, for the purposes of assessing the scope of immunity, intent and veracity/falsity are irrelevant. Your views on whether President Trump’s views on the election were accurate are irrelevant. Your views on why President Trump did what he did are irrelevant. If the acts themselves were presidential acts, falling within the outer perimeter of presidential responsibilities, they cannot form the basis for a criminal prosecution of President Trump, because presidential immunity applies.

As a result, since the entire indictment in the D.C. case against President Trump is predicated on acts like these that he is immune from prosecution for, the case should be dismissed.

4. How Likely Is Appeal?

Lastly, one final note on timing: Any denial of this motion to dismiss, or any similar motion in Georgia, is likely immediately appealable, as is the case in where congressional legislative immunity is implicated. This means, depending on how long it takes Judge Chutkan to rule, this issue could be before the D.C. Circuit and potentially the Supreme Court before long.

In the meantime, an immunity argument like this one compels a stay of all proceedings, as would be the case in almost any action where immunity forms a potential basis for the avoidance of trial.

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