By Stefanie Lindquist
Former President Donald Trump has claimed he is immune from prosecution – specifically on the federal charges that he tried to subvert the results of the 2020 presidential election. He says that his actions in connection with the 2020 election were part of his official duties, and he also argues that because he was not convicted during either of his impeachments, he cannot be tried in a criminal court for his actions.
The trial judge, Tonya Chutkan, rejected both of those arguments on Dec. 1, 2023, and Trump has appealed her ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which plans to hear the case on Jan. 9, 2024.
Special counsel Jack Smith, who is prosecuting the case, had asked the Supreme Court to step in, even ahead of the appeals court. He argues that waiting for the appeals process – and an almost certain application afterward to the Supreme Court for review – will delay the trial too long. He says the delay would deprive both Trump of a speedy trial and the American public of a long-awaited resolution of the disputes around the 2020 election – perhaps until after the 2024 presidential election.
The Supreme Court on Dec. 22, 2023 declined to step in, allowing the normal appeals process to move forward. The appeals court’s schedule requires a third round of briefing by both parties – Trump and Smith – to conclude by Jan. 2, with oral arguments slated for Jan. 9.
What’s at stake? In broad strokes, Trump’s claim appears to suggest a way he hopes to avoid any potential legal consequences of his actions. The legal issue is more narrow, but with a similar effect: If Trump’s claims are upheld, the prosecution of a former president would still be hypothetically possible, but practically extremely difficult, and only in a very limited set of circumstances.
As a scholar of constitutional law, I know that both questions will have to be resolved, either by the Supreme Court or the appeals court – or both – before Trump’s trial can proceed. Let’s look at each in turn.
Official presidential election deception?
First, Trump argues that the federal charges, including allegations that he defrauded the United States by promoting a conspiracy to block certification of the 2020 election results, are invalid because he was acting in his official capacity as president while taking the actions alleged in the indictment. A long-standing Supreme Court precedent provides federal officials with immunity from lawsuits for actions they took as part of their official duties.
The current precedent stems from a 1982 Supreme Court decision, in Nixon v. Fitzgerald, which was a civil lawsuit filed by a former Air Force analyst whom Nixon ordered fired about a year after the analyst testified to Congress about an aspect of defense spending. The ruling in that case was clear: Presidents cannot be sued for actions that fall within what the court called the “outer perimeter” of their official responsibilities.
The court did not define the “outer perimeter” in that case, but some clarity arises from a more recent case in which Trump himself was sued for civil damages based on his actions on Jan. 6, 2021. A federal appeals court ruled that Trump’s campaign activities were not official presidential actions, because campaigning is done for the purpose of seeking an office – not as part of the duties of the president.
In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting “in his personal capacity as a candidate,” as distinct from his official capacity as president.
Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on “matters of public concern” fall within the scope of his presidential duties.
His claim is new, legally speaking, because the Nixon v. Fitzgerald ruling involved a civil case, not a criminal one. And the Nixon case did not address whether a president’s official duties include running for reelection.
The remaining legal question boils down to the vague idea of an “outer perimeter” of official presidential responsibilities. There is one Supreme Court ruling that offers a clue here: In United States v. Nixon in 1973, the court ruled that the presidential privilege of confidential consultation with advisers had to yield to “the fair administration of criminal justice.” The court upheld a subpoena Nixon had been fighting.
Senate Television via AP
Is impeachment acquittal relevant?
Second, Trump claims the Constitution allows a former president to be prosecuted in criminal court for actions taken while in office only if he was impeached by the House of Representatives, as Trump was twice, and convicted by the Senate, which did not happen in either case.
The pertinent part of the Constitution says:
“Judgment in Cases of Impeachment shall not extend further than 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.”
Most lawyers agree that a sitting president cannot be indicted or prosecuted while still in office. The Supreme Court has never directly addressed this question, but the Office of Legal Counsel – a part of the Justice Department – concluded in 1973 and 2000 that prosecuting a sitting president would be a distraction from nationally important duties and responsibilities, and so should be delayed until after the president leaves office.
Trump cannot make that argument because he is no longer president. Instead, he claims that the language of the Constitution says the framers intended potential prosecution only of people who were both impeached and convicted.
However, the Office of Legal Counsel’s research made that clear too: “Neither the Impeachment Judgment Clause nor any other provision of the Constitution precludes the prosecution of a former President who, while still in office, was impeached by the House of Representatives but acquitted by the Senate.” Another memo from the office came to a similar conclusion, while admitting “the question is more complicated than it might first appear.” Although these findings do not constitute legal precedent, they nevertheless carry considerable weight in legal circles.
In fact, the office’s analysis found that the language of the Constitution was written specifically to allow prosecutions of former federal officials, whether or not they were convicted during an impeachment trial. So, it seems to me unlikely that an appeals court, or the Supreme Court, would adopt Trump’s interpretation of the clause.
Beyond this specific case
The core dispute will likely focus on what the “outer perimeter” of presidential duties are, as well as how expansive presidential powers should be. Though Trump appointed three of the D.C. appeals court’s 11 active judges and three of the Supreme Court’s sitting justices, they have not uniformly supported him in prior cases. In a case of this magnitude, they will know that the public is watching and wondering about the strength of that defining principle of American democracy: No person is above the law.
Stefanie Lindquist is Foundation Professor of Law and Political Science at Arizona State University. This story has been updated to reflect that the U.S. Supreme Court declined on Dec. 22, 2023 to take the immunity case before it is argued in a federal appeals court.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
John Stove says
Trumpo is a liar, a con man, and about to be found guilty of fraud and will have to pay millions for a defamation case.. He also damaged our country by taking classified documents to an unsecured facility and not to mention his administration “lost” a highly classified file on Russian election interference. He is a loud mouth imbecile who now is desperately trying to tie up his legal issues in delay after delay in the hope that he becomes president again and can make this all go away.
This man will be relegated to the pages of history where he will forever be known as the worst president ever who set our country back decades with his antics.
To those who continue to support him (by the way your contributions to his “re-election” fund actually go towards paying his lawyers to keep him out of jail)…..I hope you come to realize that this idiot is not from the supposed party of “Law and Order”.
Rich Santomassino says
You have summed up this piece of human excrement quite nicely!
Robjr says
Which one is it?
I did it, however I am immune from prosecution
I didn’t do it and I am being (to use his old tired phrase) ” treated unfairly”.
Or is it “election interference”.
Pogo says
@Totally partisan and corrupt SCOTUS shysters in robes slouching off a cliff
A SCOTUS behaving like the mob lawyers they are by delaying on behalf of a criminal sociopath like Trump, et al. The best experiment in democratic government in recorded history, sold and murdered in front of its undeserving heirs — by mere pettifogging.
Screw it all.
James says
It doesn’t seem to be often said or pointed out, so I’ll just say it… the problems that Trump is facing now are ultimately of his own making.
He could have chosen to magnanimously accept defeat and take the “high road” in the transition of power… but he didn’t. If he had, strangely enough, he might have made a run for president again without any of this sick drama we are experiencing.
So when he comments, “can you believe what’s going on in our country,” I can honestly say yes, and it’s all of your own making.
Just my opinion.
Laurel says
James: What gets me about his ego, and others’ egos, like Giuliani, is they never know when to give it up! Had Trump stayed on “The Apprentice,” and Giuliani stayed as “America’s Mayor,” they would still be considered okay. But no, those egos told them they needed more. Never enough. Their pursuit of happiness is unobtainable, as nobody’s home. It’s really quite sad, actually, but so it is with such, and since they want to control our lives, and sell out our country, screw them!
James says
It may be difficult to believe, but as a former NYC resident I don’t recall ever giving Trump much thought… he was at most an occasional footnote in the “Page 6” gossip column.
Have no idea where his political ambitions began, but as for his popularity… it certainly seems “The Apprentice” was the springboard that catapulted him into the limelight. A show of questionable thematic value, if only in that it did apparently showcase the man’s true nature in a more flattering light… as incredible as that sounds. Wouldn’t you agree?
But then people still watch “Survivor,” so perhaps it’s understandable I suppose.
Personally, as I mentioned long ago here, I never thought much of him in any regard, nor particularly did I think he had the temperament to be president… to put it politely.
Just my opinion.
The Geode says
I CAN’T WAIT for 2024 to see either Trump Gets elected OR the Democrats pull some shady shit and he loses. Either way, things will change through legislature OR the already angry “Silent Majority”. When THEY riot with emotion, it’s going to be harder for you to excuse it like you did with BLM and the shit you allow now…
James says
FYI Geode, I AM the silent majority.
Trump has pair of socks on ebay…
only pair of it’s kind (on sale now, that is) get em while you can, 500k.
Just a suggestion.
Bob says
Election interference=Colorado keeping trump off the ballot. Number 2= Hunter’s laptop. No investigation. Lies . Chinese spy ballon . What ballon? Goes on and on
Sherry says
@bob. . . a 2 second “Google” search and I found plenty of information on the investigations of “Hunter’s” laptop. I guess Fox “Right winged Entertainment” did not report on the investigations because they did not reveal ANY dirt on President “Joe” Biden.
Take a good read:
https://www.nbcnews.com/politics/national-security/analysis-hunter-bidens-hard-drive-shows-firm-took-11-million-2013-2018-rcna29462
My advice to you. . . switch to a news outlet with actual credible facts: APNews or PBS.
Ed says
Sherry,
FYI, the article you referenced is from May 2022.
Ancient history in a news cycle and not really current events.
rich L Santomassino says
You should’ve just said “fake news” like your idiot pied piper. I hope I can be around to watch you lemmings follow him off the cliff!
Ed says
Hey Rich,
The point to my post is that a massive amount of other information has been uncovered since May 2022. Newer information could change the narrative. The laptop investigation took years.
Also just for keeping things real, mass lemming suicide is myth, and the pied piper probably never existed either.
Sherry says
@ed . . . the comment was that Hunter’s lap top was not investigated. I’ve shown proof that is absolutely was! The FACTS speak for themselves! The investigation ended in 2022, and therefore FOX and the GOP need to move on, as do you. Merry Christmas!
Bob says
To all . Hunter’s. laptop was never investigated before the 2020 election. Blocked by the Dems as Russian disinformation. This was an example of election interference.. I see it this way about most of n this website . One you all are intolerant of others and oare misinformed or malinformed
Ray W. says
I, for one, eagerly and hopefully await the next installments of Tristam’s Travels Across America.
Sherry says
@bob. . . one human being to another. . . for the sake of your own well being. . . turn off FOX, seek counseling, take back your independent mind, hug your loved ones, practice random acts of kindness, take back your soul, find credible facts on PBS or AP News. Wishing you love, peace and reason in 2024!
Skibum says
Trump’s last gasp it to try to get the Supreme Court to rule that as president, he had total and complete immunity and therefore cannot be prosecuted. If the court actually decides in his favor, which I seriously doubt will happen, and issues a ruling that presidents are in fact immune from being prosecuted for acts committed while in office, then Biden would have the exact same immunity from prosecution that Trump claims, and could order the FBI to arrest Trump, parade him to the middle of 5th Ave. in NY, and Biden could meet him there in the middle of the street and shoot him dead and then casually walk away scott free. Does Trump really think presidential immunity would be a good thing for him, or for our political system in America?
Laurel says
Skibum: Good point! Trump only thinks of what is good for him right now. He doesn’t care otherwise.
I learned long ago, that there are honest people and people who are not so honest and are egocentric. Here’ the thing. These two types of people play by different rules. The honest person tries to do what is right, while the other guy does whatever he needs to do to accomplish his personal goals.
So, Trump knows damn good and well that Biden would never do what you suggest. Trump would. Two different sets of rules.
I know, I know, that’s where logic scratches its head.
Laurel says
It’s interesting that Trump pledges to uphold the Constitution, wants to terminate the Constitution, claims that he is immune because to the Constitution…
Whatever his believers believe.
Thurston Howell III says
Trump 2024! Take America back! We LOVE you President Trump!
rich L Santomassino says
Hey Thurston:
Two guys named Gilligan and The Professor are looking for you in order to “Take Thurston back” to the mental hospital he escaped from!
Laurel says
Thurston forgot to take his meds again, someone help!
Momma Mia says
It makes my heart sad to see and hear what people have become. There is enough hate in the world without politics. I wish that everyone could just step back take a breather and morally use their heads when they vote. I am embarrassed to even be an American anymore. I have recently been to other countries and heard the comments and opinions of yus. It is not good. The world is watching. Wake up and do the right thing. I wish we had better choices for a president, but again we are stuck with some real lovers. I keep hoping someone decent will step into this race that we can be proud of. That is not likely. I still have hope.
Sherry says
@Momma Ma, Please post “credentialled facts” regarding your negative opinion (I assume you meant loser, not lover) of President Biden. President Biden is only a couple of years older than trump, and yet his vast experience in national and international politics has enabled him to pass important legislation like the critically needed national “infrastructure plan” . President Biden has pulled together a team of experts that have created things like our economic recovery from the Covid pandemic. The DOW is now at an all time record high. Check your 401K plan.
When personally traveling to other countries in Europe, North America and Africa. . . what I have been asked is how we could have let someone immoral and corrupt like trump into the presidency, to begin with. People in other countries do not understand how it is that Putin became our friend in the trump era. They are aghast at our gun culture, and are afraid to travel here because of our gun violence.
I would really like to know the actual facts behind your opinions.
Thanks so much, and Happy New Year!