The Supreme Court will soon decide whether Donald Trump has immunity from criminal prosecution for his actions that culminated with the events on January 6, 2021. Immunity is most frequently granted when a prosecutor agrees not to prosecute a person in exchange for testimony against someone else. Trump, however, is not seeking immunity as part of such a bargain. Instead, he wants it for his status as ex-president of the United States. Status, however, has not prevented the prosecution of governors, members of Congress, judges, CEOs, religious figures, or others.
While status has not given others immunity, it has been argued that a president enjoys limited immunity while in office. The Office of Legal Counsel of the Department of Justice (OLC) in 1973 and 2000 concluded that it was, in fact, unconstitutional to prosecute a sitting president. The Office reasoned in part that the president “is the symbolic head of the Nation. To wound him by a criminal proceeding is to hamstring the operation of the whole governmental apparatus in both foreign and domestic affairs.” And, of course, the time that a sitting president spends defending criminal charges is time not spent governing.
Other prominent legal thinkers have not agreed with the OLC and have maintained that even while president, a person can be criminally charged. The Supreme Court has never decided this issue, but the OLC’s rationale would only protect a person while in office. Trump, however, wants something much more. He wants immunity now even though he is no longer the symbolic head of the country and a criminal trial would no longer interfere with presidential duties. He wants immunity for his status as ex-president.
Some find merit in his position. For example, Marco Rubio, as reported by Nick Robertson in The Hill of March 24, 2024, defended Trump’s claim of immunity. Rubio said, “I do think there’s a legitimate issue here that we need to talk about writ large, especially after what we’ve seen in the last three years. Do we want to live in a country where basically the opponents of the president can kind of extort them, can have leverage over them during their entire presidency and say, ‘Don’t worry, once you’re out of office, we’re going to prosecute you or we’re going to come after you, charge you with this crime or that crime.’ We’re living in a country now, where basically, if you’re president now, you have to think to yourself, ‘I gotta be careful what I do as president,’ not even legal or illegal, even on policy.”
Robertson reports that Trump’s attorney have made a similar claim: “A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole. That vital consideration alone resolves the question presented in favor of dismissal of this case.”
Nowhere in the Constitution does it say that a president, much less an ex-president, has immunity. The only explicit constitutional provision about presidential immunity makes it clear that ex-presidents can be prosecuted at least sometimes. Section 3 of Article I states that a person convicted of an impeachable offense, which would result in the removal from office, “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
If the Supreme Court were to find any sort of immunity for Trump, they would have to make it up. That, of course, is not what they will say they are doing. Instead, they will say that they are inferring it from explicit constitutional provisions. The Supreme Court has often been criticized for finding rights that are not explicitly stated in the Constitution, but only “activist” judges could proclaim prosecutorial immunity for an ex-president.
Even though it is not in the Constitution, I have some sympathy for the position that presidents should be able to make decisions without the fear of later prosecution. The only reason to give an ex-president immunity is to keep subsequent presidents free of such a concern. I leave it to you to decide whether that is a sufficient reason to infer that such a protection for ex-presidents is in the Constitution.
On the other hand, I hope that we can all agree that a president who brutalizes his wife leaving her disfigured and disabled should not be free from prosecution. A president who arranges for a political, business, or romantic rival to be killed should not have immunity. A president who barricades the polls to prevent citizens from voting can, and should, be prosecuted.
If an ex-president were to have any immunity, it should only be for presidential decisions and actions. It should only be for the use of powers granted by the Constitution to the president. Committing domestic violence is not a presidential decision. You don’t have to be a president to commit domestic violence. Nor do you have to be a president to kill a rival or, as our history has shown repeatedly, to intimidate or use violence to prevent votes from being cast. Decisions that only a president can make perhaps should have criminal immunity but not for behavior that non-presidents also commit.
Although the boundary as to what constitutes a presidential decision may at times be hazy, some of the criminal prosecutions against Trump are brought for clearly non-presidential actions. It should be evident that any litigation concerning his behavior before he was president do not involve presidential decisions. His actions alleged in the New York criminal” hush money case” occurred before he was president, so there cannot be any kind of presidential immunity for those actions. As I wrote before, perhaps we should be concerned that he was targeted by New York law officials (see post of March 18, 2024, “Targeting Trump”). If so, he should get the same legal protections that are available to anyone who has been arguably targeted by prosecutors, but nothing more.
The absence of immunity in the Florida case also seems straightforward. The transfer of records from the White House to Trump’s living spaces may have happened while he was president and perhaps could be deemed presidential actions. However, because he is being prosecuted in Florida for refusal to surrender classified documents after he left office, he could not have been making a presidential decision to keep them because he was no longer president. He was acting as a private citizen, and he should not get any kind of presidential immunity in that case.
That leaves the Georgia and federal criminal cases revolving about the events that culminated on January 6. Trump was president when these events occurred, and some have claimed he was acting within the duties of a president by insuring or inquiring about the integrity of an election or was simply exercising his free speech rights. The criminal allegations, however, allege that he was interfering with the integrity of elections and trying to prevent the rightful winner from peacefully taking office. Trials exist to resolve questions of fact. Thus, if Trump was not seeking to interfere with the outcome of the election or was not inciting or colluding with those trying to unlawfully interfere with the transfer of office, he does not need immunity. He will be acquitted.
If Trump was interfering with a valid election, he was not using powers given to the president by the Constitution. If he had lost, Biden might have tried to marshal fake electors, could have leaned on a state official to “find” more votes for him, and then encouraged a mob to march on the Capitol to prevent the lawful certification of the election’s result. If this is what Trump did, he was not exercising presidential authority; he was, instead, trying to manipulate a system that had rejected his presidential candidacy. He should not have immunity for these actions.
Finally, the alleged fear that political opponents will persecute former presidents in the future for partisan reasons has neither history nor logic behind it. These are the first prosecutions of a former president in our over two-century existence. This is so even though during those two hundred years we have had many fierce, partisan alignments. The immunity advocates may say the times are different now, but if so, they don’t want to recognize that the times may be different because Trump’s actions have made them different. They give us no examples of prosecutions of ex-presidents for trying to hide hush money payments, withholding classified documents after leaving office, the obstruction of results of an election, or any other reason. And our future history is unlikely to be rampant with similar prosecutions.
There are natural, institutional restraints on the use of criminal charges for presidential decisions against former presidents by successors. Most of what a president does—appoint a Secretary of State, prepare a budget, draft a new healthcare bill—is not even arguably criminal and will not lead to any criminal prosecution. Perhaps, however, ordering a drone strike that kills an American citizen claimed to be a terrorist leader in the Mideast or declaring an “emergency” to find the funds to build a border wall that Congress has refused to fund — these might arguably be criminal. Even if so, successor administrations are highly unlikely to seek indictments for such actions no matter what the partisan climate. Criminal charges would mean that the successor had restricted his own freedom of action. Someday he may want to do something akin to what a predecessor did, but if he labeled it criminal through a prosecution, he won’t be able to. Sitting presidents almost never want to limit their own power. Indicting and trying predecessors for presidential acts has not happened and will not happen.
The scare tactics are a false flag.
And in our country, you and I and ex-presidents are all supposed to be equal under the law.
