In an effort to get out of the many criminal and civil cases pending against him, former President Donald Trump has taken to arguing — in the words of his predecessor Richard Nixon — that “when the president does it, that means that it is not illegal.”
But the courts keep disagreeing.
The latest setback in Trump’s push for total presidential immunity came Tuesday at the U.S. Court of Appeals for the District of Columbia Circuit, where a panel of three judges unanimously rejected the former president’s central claim: that he cannot be held criminally liable for trying to undo his 2020 election loss because presidents are forever shielded from prosecution for official actions unless Congress impeaches and convicts them first. (Trump was twice impeached by the Senate but never convicted by the House of Representatives.)
“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches,” they wrote. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
The D.C. decision extends Trump’s unbroken losing streak on the immunity issue — in the Georgia election interference case; in his New York defamation case; and previously in this same case, for federal election interference.
Yet it isn’t quite the end of the story. Part of Trump’s strategy in appealing for immunity is to hope the courts end his legal troubles by saying he wasn’t subject to prosecution in the first place. The other part of Trump’s strategy is to stall his trials until after the 2024 election — at which point he could, if victorious, have most of them dismissed.
Already, U.S. District Judge Tanya Chutkan, who is overseeing the federal election trial, has been forced to postpone its March 4 start date until Trump exhausts his avenues for appeal.
So two questions remain:
Does Trump still have a chance of dodging criminal charges on immunity grounds — perhaps now that the case is one step closer to a conservative-leaning Supreme Court?
And legal merits aside, could Trump still somehow “succeed” — possibly with the Supreme Court’s help — by prolonging the immunity deliberations past Election Day?
Why there’s debate
Presidential immunity isn’t a myth. It has just never been applied in anything like the manner Trump is proposing.
As law professor Kate Shaw recently explained, the current understanding of presidential immunity is as a set of “pragmatic” protections that “attach to the president under certain circumstances” — “grounded not in constitutional text or history but in the needs and demands of the contemporary presidency.”
The most common of these circumstances (as established in 1974 in United States v. Nixon) is when executive privilege is required to shield certain information — such as candid advice from advisers — from being revealed in court.
Less common (but established in Nixon v. Fitzgerald) is the idea that presidents are immune from civil damages for official acts because the constant fear of lawsuits could “distract a president from his public duties.”
Meanwhile, the Department of Justice’s Office of Legal Counsel has taken the position that presidents are protected from federal criminal prosecution — so long as they are still actively serving as president.
But never before has any branch of government said that a former president like Trump can’t face criminal charges for acts committed while in office — particularly if those acts fall outside his official duties. As the Supreme Court itself explained in 1974, no constitutional principle supports “an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.”
Yet Trump keeps swinging for the fences by claiming his plan to overturn the 2020 election was an official presidential act; that prosecuting him for it would set a dangerous precedent for future presidents; and that if Congress didn’t already impeach and convict him for it, a court can’t convict him either.
After Chutkan rejected Trump’s immunity claim in early December, special counsel Jack Smith sought an expedited review by the Supreme Court. But the high court declined to weigh in before the D.C. Circuit rendered its decision.
Now that the D.C. Circuit panel has ruled against Trump, there are only two more bodies to appeal to — which Trump campaign spokesperson Steven Cheung has promised the former president will do.
“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Cheung said in a statement.
The first would be the full 11-judge D.C. Circuit Court (as opposed to just its three-judge panel). The problem for Trump is that the panel has given Chutkan the green light to immediately restart trial preparations if Trump takes that path — a rule designed to discourage his team from indulging in more time-wasting maneuvers.
The other place to appeal is the Supreme Court. Trump has until Feb. 12 to file. Assuming he goes to the top, the Supreme Court would then have to choose whether it wants to wade into the immunity issue, risking controversy and further delaying Trump’s federal trial — or whether it prefers to steer clear by refusing to hear the case and letting the lower court’s decision stand.
Trump’s federal election trial could still start in late spring — and conclude two to three months later, before the general election gets fully underway — if the Supreme Court declines his request for review.
But if not, Trump’s eventual election trial could continue right up until Election Day — or even beyond.
The Supreme Court should stay out of it — just like in previous Trump cases
“The Supreme Court has repeatedly declined to hear Trump and his allies’ assaults on democracy and the rule of law. ... In each of these cases, the court found that the answer to the legal challenge Trump presented was so obvious, it did not need to intervene. The same is true in this case.” — Norman Eisen, Joshua Kolb and Samara Angel, MSNBC
But if the court does weigh in, it should do so quickly
“With both prosecution and defense acknowledging the importance of Supreme Court review, it may be that the justices will take this up. If so, that should be on an expedited basis that has the case argued and decided not just this term, but as swiftly as possible. The strength of the appeals court’s ruling ... should make that task easier.” — Ruth Marcus, Washington Post
Absolute presidential immunity ‘has next to nothing to support it in doctrine or in history’
“There’s a reason, after all, that Nixon required a pardon from Gerald Ford, and that Bill Clinton gave up his law license as part of a deal to avoid prosecution following his perjury scandal. This makes sense: A president’s duties will never require him to break the law, much less to do so intentionally.” — Editors, Washington Post
Prosecuting Trump for ‘official’ acts would open a ‘Pandora’s box’
“It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border, allegedly. ... Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress, to induce the nation to go to war in Iraq under false pretenses? ... Could President Obama be potentially charged for murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad?” — Trump attorney John Sauer, arguing Jan. 9 before the U.S. Court of Appeals for the District of Columbia Circuit
But not everything a president does — like, say, trying to win an election — counts as an ‘official’ act
“When a sitting President running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial, private capacity cannot qualify for official-act immunity.” — U.S. Court of Appeals for the District of Columbia Circuit, in Blassingame v. Trump
Trump doesn’t even believe his own immunity claims
“Trump’s legal claim rests on the premise that whatever Trump could have immunity to do, Joe Biden could too. ... If he were really worried that Biden was abusing his official position and directing shadowy and improper investigations against his political rival, the former president wouldn’t simultaneously be arguing that Biden could and should be able to do so consequence-free.” — Editors, New York Daily News