Written By: Grace Frey
Former President Donald Trump was indicted in August 2023 on four counts arising from his alleged involvement in the events of January 6, 2021, and is currently awaiting trial. His lawyers had previously tried to waive the charges on the theory that no president can be prosecuted for actions taken while they were still in the role of president. However, the district court rejected this executive immunity claim, finding “[f]ormer Presidents enjoy no special conditions on their federal criminal liability.” Similarly, the D.C. Circuit Court of Appeals, noting that this was a question of first impression, agreed and argued that finding an exception for executive immunity would have the court find “that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.”
After the D.C. Circuit Court of Appeals affirmed the lower court’s decision, Trump came to the Supreme Court asking for the D.C. Circuit ruling to be put on hold to give him time to file a petition of review and possibly receive reconsideration by the full D.C. Circuit. In order to speed up the process ahead of the upcoming presidential elections, the Supreme Court agreed to put the D.C. Circuits ruling on hold as a petition for review, grant that petition, and fast-track the case for oral argument in late April 2024. The justices will be deciding when a former president is immune from prosecution for alleged conduct involving his official acts while in office.
This is an unprecedented case, because no other sitting or former president has ever been indicted on criminal charges; as a result, Trump is the first former president to have even been denied immunity. In support of their immunity contention, Trump’s lawyers cite Nixon v. Fitzgerald, where former President Nixon was granted presidential immunity for civil damages. Relying on this case, they argued that the law provided absolute immunity “for acts within the outer perimeter of the President’s official responsibility.” They contended that the former president’s efforts to corroborate election results was well within his duties as president and that his motivations were not for the court to decide.
There are several things that the Court should take into consideration. First is what constitutes a President’s “official acts.” Trump’s argument is that the conduct fell within the outer perimeter of his official duties. His legal team rely on the seminal case, Marbury v. Madison, which found that a president’s official acts “can never be examinable by the court.” Their contention is one of absolute immunity. If the Court were to find this is true, they would most likely find that his speech at issue in the charges was “political speech.”
However, some legal scholars argue that giving the president absolute immunity during his time in office is a dangerous precedent to set. They hope that if the Court were to give Trump’s immunity claim any credence, they should make clear their holding is a narrow one and not an absolute protection. Similarly, in an amicus brief submitted to the Court, others argue that absolute immunity has no basis in the Constitution’s text and history. While there is clear textual immunity given to the legislators under the Speech or Debate Clause, in Article 1, Section 6, Clause 1 of the Constitution, there is no similar clause explicitly providing for absolute immunity to sitting or former presidents.
Those who do find support for Trump’s immunity claim find it in the Court’s decision in Nixon v. Fitzgerald. However, as noted earlier, that case was a civil lawsuit in which a former Air Force analyst claimed he was unfairly fired by then-President Nixon. In their decision, the Court found that the president is immune from civil lawsuits for damages occurring as a result of their official duties, but made it clear they would not be immune for unofficial acts. The Court further clarified their decision in Clinton v. Jones, ruling that the president could not enjoy immunity for acts committed before taking office or unofficial acts unrelated to the office. It will be interesting to see how the Court’s decisions in the case of civil lawsuits will bear on their decision in the context of criminal lawsuits.
If the Supreme Court were to affirm the appeal court’s decision, Trump might have to stand a criminal trial while campaigning for president. Interestingly enough, standing trial or even being convicted would not automatically disqualify him from seeking the presidency. Two hopeful candidates in the past, Eugene V. Debs and London LaRouche Jr., both campaigned from federal prisons. Regardless, either way the Court decides will have a large impact on how the presidential elections proceed, as well as set a clear precedent on whether the president has complete immunity for all official acts done while in office, whether the charges are civil or criminal.
Sources:
See Jacob Knutson, What to Know About Trump’s Immunity Claims in the 2020 Election Cases, Axios (Feb. 6, 2024), https://www.axios.com/2024/01/04/trump-trial-case-election-fraud-immunity.
See Donald Trump’s Clam of Absolute Immunity Rejected: What Next?, AlJazeera (Feb. 7, 2024), https://www.aljazeera.com/news/2024/2/7/donald-trumps-claim-of-absolute-immunity-rejected-what-next.
See Amy Howe, Supreme Court Takes Up Trump Immunity Appeal, SCOTUSblog (Feb. 28, 2024, 5:31 PM), https://www.scotusblog.com/2024/02/supreme-court-takes-up-trump-immunity-appeal/.
United States v. Trump, ___ F. Supp. 3d ___, 2023 WL 8359833, at *3 (D.D.C. Dec. 1, 2023).
Nixon v. Fitzgerald, 457 U.S. 731 (1982).
Clinton v. Jones, 520 U.S. 681 (1997).