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The Argument Against Presidential Immunity

Overview

A foundational principle of our democracy is that everyone — from an ordinary citizen to the president — must follow the law. The King of England, against whom the Founders rebelled, was above the law. It was considered beneath his dignity to subject him to legal process — for example, to allow him to be sued or to require him to give testimony in court. The Founders purposefully and carefully rejected this approach, and designed our constitutional system with a core principle in mind: the president is not a king. He, like every American, must obey the law. This is what makes our democracy a “government of laws, and not of men.”

But the Trump administration has attempted to claim the powers of a king for the president by placing him above the law. Again and again, President Trump and his representatives have told state and federal courts, state and federal law enforcement, and Congress that the president is not subject to the laws that apply to every other American and that he can’t be held accountable. Furthermore, President Trump is engaged in a kind of shell game: whenever one entity tries to hold him accountable, he insists that only another entity can do so, but he then turns around and claims that the second entity also has no power over him, either. When these arguments are taken together, it becomes clear that the Trump administration believes that no one can hold the president accountable for breaking the law. 

For example:

  • The President has claimed that he has the “absolute right” to do what he wants with the Justice Department, including shutting down or obstructing any federal investigation of himself and initiating investigation of his perceived political enemies.
  • The President and his lawyers have argued that he is absolutely immune from criminal process and he need not cooperate with a legitimate criminal investigation. Indeed, President Trump’s lawyers have told a court that the president could not be prosecuted or even investigated if he shot someone in broad daylight.
  • The President and his attorneys have claimed that the president can ignore congressional subpoenas, and that he and his aides are absolutely immune from congressional requests for documents and testimony, even in an impeachment investigation.
  • The president and his attorneys have argued that Congress cannot use impeachment to hold him accountable for obstructing investigations into himself.
  • The president’s attorneys have asserted that the president is immune from being sued in state court, even if the lawsuit concerns unofficial, pre-office conduct.
  • The administration has repeatedly argued that courts have no power to order the president to stop taking unlawful actions.
  • The president has insisted that he has the “absolute right” to pardon himself.

A complete list is here

Protect Democracy continues to fight this view in court, as well as by urging Congress to pass legislation reaffirming that the president, like every other American, must obey the law.

  • We represented law professors who filed an amicus brief 20 years ago in Clinton v. Jones in filing similar briefs in two key state court cases where President Trump claimed he was immune from investigation: Zervos v. Trump and N.Y. v. Trump (the Trump Foundation case).  
  • We represented 20 Republican legal experts, former officials, and former members of Congress in filing an amicus brief in Committee on the Judiciary v. McGahn in the D.C. Circuit, which uses historical evidence to demonstrate that the Founders gave Congress and courts the power to compel the president (and by extension his aides) to comply with subpoenas.
  • And we are representing 37 former Republican members of Congress, former officials from Republican administrations, and legal experts in filing an amicus brief in Trump v. Vance in the Supreme Court, which argues that the president, like all Americans, must follow the law — including complying with legitimate criminal investigations — and that the Constitution provides no support for the president’s claim to absolute immunity.

President Trump’s Claims of Immunity from Accountability

Click here to view the PDF.

One of this nation’s most important founding principles is that ours is “a government of laws, and not of men.” The Founders rejected the English model of a king who could do no wrong and stood above the law. Instead, they adopted a system under which every American—from an ordinary citizen to the president —must comply with the law. One recurring feature of the Trump presidency has been the rejection of this founding principle. President Trump and his representatives have repeatedly argued that he is not subject to the law—rather, it is subject to him.

This argument that the president is above the law takes two related forms. First, President Trump claims an “absolute right” to control federal law enforcement, including directing it against his perceived enemies and shielding his friends and allies (and even himself). Second, he contends that he cannot be held accountable by anything or anyone.

The attached appendix collects and documents examples of the presidential immunity claimed by President Trump—that is, immunity from accountability and oversight. Time and again, President Trump, his representatives, his personal lawyers, and lawyers for the government have claimed that the president is immune from oversight, investigation, and inquiry.

Each example documented below, standing alone, might seem like a narrow or technical argument that does not go much beyond the positions taken by prior presidents. But taken together, a more alarming picture emerges from which two conclusions can be drawn. First, President Trump and his lawyers do not believe that anyone—not Congress; not federal, state, and local law enforcement; not federal and state courts—can investigate his actions or hold him accountable. Second, President Trump and his lawyers are attempting to cover up the extreme nature of their arguments by engaging in a kind of shell game with federal courts and Congress.

This shell game was most clearly on display in the context of impeachment. President Trump and his lawyers have repeatedly resisted other traditional forms of presidential accountability and emphasized impeachment as the main check on presidential abuses of power. For example, when claiming complete immunity from criminal prosecution or investigation at both the federal and state level for both official and unofficial actions, President Trump argues that the proper check on his authority is Congress’s power to impeach. 

But when Congress moves to use its impeachment powers as a check on the president, President Trump then systematically attempts to undermine the impeachment power. First, he refuses to provide evidence in response to congressional subpoenas or in any way cooperate with the impeachment inquiry, and claims that his advisors are absolutely immune from subpoena. Next, he claims that impeachment would be improper when there was no “witness with actual knowledge” that could testify as to the president’s actions and that Congress should have gone to court to enforce its subpoenas. Next, when Congress does go to court, the Justice Department argues that the courts are powerless to intervene in an interbranch dispute and that the only remedy is the impeachment power (and unfortunately, thus far that argument has prevailed). Finally, in impeachment proceedings, President Trump’s lawyers argue that he cannot be impeached for declining to respond to congressional subpoenas but instead only for “crime” or “crime-like” offenses, which, of course, elsewhere he has also suggested he is incapable of doing when exercising his official powers because Article II gives him “the right to do whatever I want as president.” 

President Trump’s arguments—if accepted—would dismantle the Constitution’s separation of powers. The impeachment power would be left as the primary check on presidential power but it would be hollowed out by Congress’s inability to investigate whether the president has committed an impeachable offense. This is the result that President John Quincy Adams noted would make a “mockery” of the separation of powers. And when that gutting of the impeachment power is combined with President Trump’s view—outlined below—that he’s accountable in no other forum, the result is an autocratic form of government where the president is entirely unaccountable to any law or any other branch of government. As a result, if President Trump’s arguments are accepted, the only remaining check on presidential power will be an election in which the president can abuse his powers and break the law in order to gain an electoral advantage.

Examples of President Trump claiming that federal law enforcement cannot check him

President Trump has claimed an “absolute right” to control the Justice Department—a right extending to the ability to shut down investigations into the president and his associates that might bring to light wrongdoing by the president. 

  • President Trump has repeatedly claimed that he has an “absolute right” to interfere with and control the Justice Department and federal law enforcement matters, even to punish perceived enemies and reward his allies or to impede an investigation that would uncover his own unlawful conduct.
  • In a letter to Special Counsel Robert Mueller, President Trump’s personal attorney, John Dowd, expounded on that claimed power and noted that “[The president] could, if he wished, terminate” an inquiry into whether President Trump and his close associates broke the law.
  • President Trump has also claimed the “legal right” to use official powers to instruct Justice Department officials to pursue more lenient sentencing recommendations for his political allies. 

President Trump has claimed that so long as he is exercising his presidential powers, anything that he does is legal. 

  • In a letter to Special Counsel Mueller, John Dowd also asserted that the president cannot obstruct justice because “the President’s actions . . . by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself . . . .”

President Trump has claimed complete immunity from criminal process.

  • In a Supreme Court filing, President Trump’s lawyers claimed that he “cannot be criminally prosecuted while in office” and that “the remedy for wrongdoing by the President is impeachment, not criminal prosecution.” But President Trump’s argument extends well beyond criminal prosecution, to all stages of criminal proceedings, including investigation.
  • The Justice Department has also opined and argued to the Supreme Court that the president cannot be indicted. 

And if all else fails, President Trump has rejected the view of the Office of Legal Counsel and has claimed the right to pardon himself and his close associates to dissuade cooperation with the Justice Department.

  • President Trump has claimed: “I have the absolute right to PARDON myself,” and his personal attorney Rudy Giuliani told the Washington Post that Trump “probably” can pardon himself.
  • Special Counsel Mueller found that President Trump’s decision to make “repeated statements suggesting that a pardon was a possibility for [his former campaign manager Paul] Manafort, while also making it clear that the President did not want Manafort to ‘flip’ and cooperate with the government” had the “potential to influence Manafort’s decision whether to cooperate with the government” because “a pardon was a more likely possibility if Manafort continued not to cooperate with the government.” A federal district court later held that Mr. Manafort breached his plea agreement by lying to the Justice Department.

Examples of President Trump claiming that Congress cannot check him

President Trump has rejected efforts by Congress to subpoena his personal records. 

  • President Trump’s lawyers have argued to the Supreme Court that Congress cannot subpoena his personal, pre-office records when determining whether presidential conflict-of-interest statutes need to be strengthened. They have asserted, among other things, that doing so would transgress the Constitution because such subpoenas would supposedly be distracting to the president and would “keep[] the President from fulfilling the obligations of his office.”
  • The Office of Legal Counsel issued a 2019 opinion that Congress cannot obtain President Trump’s tax returns pursuant to statute because Congress was acting with an improper motive.

President Trump has also rejected efforts by Congress to subpoena White House employees—even in the context of an impeachment inquiry—suggesting that they are absolutely immune from subpoena.

  • The Office of Legal Counsel has repeatedly claimed that top White House advisors have absolute immunity from congressional subpoenas.
  • In court, the government has argued that President Trump and his advisors are absolutely immune from congressional oversight, even in the context of impeachment.
  • The White House categorically refused to cooperate with impeachment proceedings.
  • But, at the same time, President Trump’s lawyers have argued that he cannot be impeached for obstructing a congressional investigation. They have also argued that impeachment would be improper when there are no “witness[es] with actual knowledge” that could testify as to President Trump’s actions (even though, as noted above, President Trump has also claimed that such individuals are completely immune from subpoena).

President Trump has rejected the idea that the use of his constitutional powers to further his electoral self-interest can constitute an impeachable offense. 

  • In impeachment proceedings, President Trump’s counsel argued that he does not commit an impeachable offense (i.e., a high crime or misdemeanor) when he takes actions “which he believes will help him get elected” if he believes those actions are “in the public interest.”
  • Instead, President Trump has argued that he can only be impeached for committing a “crime” or “crime-like” offense, even though he has also suggested he is incapable of committing crimes when exercising his official powers because Article II gives him “the right to do whatever I want as president.” And he has also argued that he can shut down investigations into associates that might uncover evidence of criminal activity.

Examples of President Trump claiming that the courts cannot check him

President Trump has argued that the courts have no power to stop him from taking unlawful actions.

  • Justice Department lawyers have repeatedly argued that a court cannot issue injunctive relief “directly against the President for his official conduct.” Thus, according to the Justice Department, the federal courts have no power to order President Trump to follow the Constitution.
  • The Justice Department has also argued that the federal courts are powerless to even consider whether President Trump’s claims of absolute immunity from subpoena are correct, and that the federal courts should leave it to Congress to decide whether to impeach the president for obstructing a congressional investigation. (The argument that courts cannot enforce congressional subpoenas in this context unfortunately prevailed in the D.C. Circuit recently, in a blow to Congress’s role as a check on the executive.)

Moreover, even when courts do conclude that they have the power to issue orders compelling government action, President Trump has used his pardon power to undermine the incentive of government officials to follow judicial orders.

  • In 2017, President Trump pardoned Sheriff Joe Arpaio for his criminal contempt conviction after Sheriff Arpaio disregarded court orders remedying constitutional violations, suggesting that the Sheriff was “convicted for doing his job.”
  • In 2019, President Trump reportedly (i) told border agents not to follow judicial orders requiring the entry of migrants and (ii) offered to pardon the Acting Secretary of Homeland Security were he ever convicted for disobeying the law.

Examples of President Trump claiming that states cannot check him, even for actions that have absolutely nothing to do with his presidential duties

President Trump has argued that he is completely immune from any obligation to respond to state criminal investigations, even when the investigation concerns unofficial conduct.

  • President Trump’s lawyers have argued to the Supreme Court that not only would it be unconstitutional for state prosecutors to indict the president for not paying his taxes, but also that it is unconstitutional for state prosecutors to even subpoena third parties seeking information related to the president because doing so would supposedly distract the president, thereby violating the Supremacy Clause.

President Trump has also argued that he is immune from all lawsuits in state court, even when the suits concern unofficial, pre-office conduct. 

  • President Trump’s lawyers have argued that he is immune from all lawsuits in state court because “any assertion of jurisdiction by a state court over the President will inevitably interfere with . . . his or her ability to exercise the President’s Article II powers.” 

SCOTUS, No One Is Above the Law

President Trump and his lawyers claim that the president is immune from not just indictment and prosecution, but even routine document requests as part of a legitimate criminal investigation. It’s part of his larger argument for absolute presidential immunity. But that’s not consistent with what the Founders thought about presidential immunity — and in fact, it is a radical departure from the fundamental founding principle that the law applies equally to every American. 

In response to this dangerous argument, 37 former Republican members of Congress, former officials in Republican administrations, and legal experts filed an amicus brief in the Supreme Court in Trump v. Vance. The brief argues that the president, like all Americans, must follow the law — including complying with legitimate criminal investigations. The brief includes examples of numerous past presidents who answered interrogatories, sat for depositions, and otherwise gave evidence in criminal and civil cases.

Vance concerns a subpoena issued by a grand jury called by Manhattan District Attorney Cyrus Vance to accounting firm Mazars USA. The president has intervened to assert a total immunity from investigations that so much as touch his affairs. The district court and Second Circuit ruled against him. The case is an important test of the President’s claim that he is immune from criminal investigation — but also a critical test of his larger theory of absolute immunity from accountability

Petitioner’s merits brief is here; Respondent’s reply brief is here

The President Is Not Immune from Subpoena

President Trump insists that the president and his advisors are immune from being compelled to provide documents and testimony to Congress or the courts. But that’s not consistent with what the Founders thought about presidential immunity. 

Historical evidence shows that the Founders believed that (1) every person who is competent to give evidence may be subpoenaed; (2) the King is the only exception; and (3) a president is not a King. In fact, the Founders omitted any reference to presidential “immunity” from the text of the Constitution. Based on the historical record, it’s clear that the president – and his current and former senior aides — are not immune from congressional subpoena. Protect Democracy represented 20 Republican legal experts, former officials, and former members of Congress who laid out the historical evidence in an amicus brief to the D.C. Circuit in Committee on the Judiciary v. McGahn.

Unfortunately, the D.C. Circuit recently ruled in McGahn that courts don’t have the power to enforce congressional subpoenas. This decision, if upheld, would effectively destroy Congress’s ability to get information from the executive branch, making it difficult for Congress to fulfill its constitutional responsibilities to conduct oversight of the Executive Branch and to hold the president accountable if he breaks the law or abuses his powers. 

Urging the full court to rehear the McGahn case, Protect Democracy, with Arnold & Porter, filed the below amicus brief on behalf of a bipartisan group of 96 former Senators, Representatives, and executive branch officials who are concerned that the court’s recent decision would eliminate congressional oversight and upset the careful system of checks and balances on which our Constitution depends. Amici are supporting the House Judiciary Committee’s request that the D.C. Circuit rehear the case before a full court — and overturn the panel’s erroneous decision.

Original, Historic Sources on Presidential Immunity

Below are links to historical documents and relevant research that shows the Founders believed 1) that every person who is competent to give evidence can be subpoenaed, and 2) that kings are the only exception, and 3) that a president is not a king. These sources and more were cited in our McGahn amicus brief.

  1. Baron de Montesquieu, The Spirit of Laws 188 (10th Ed. S. Crowder, C. Ware, and T. Payne, London 1773)
  2. Tench Coxe, An American Citizen, On the Federal Government I, II, III, Independent Gazetteer (Sept. 26–29, 1787)
  3. Annals of Cong. 493 (1792)
  4. Letter from George Washington, President, to the U.S. House of Reps. (Mar. 30, 1796)
  5. Letter from Charles Lee, U.S. Att’y Gen., to George Washington, President (Mar. 26, 1796)
  6. Letter from James McHenry, U.S. Sec’y of War, to George Washington (Mar. 26, 1796)
  7. Thomas Cooper, An Account of the Trial of Thomas Cooper 10 (1800)
  8. Documents, Accompanying the Report of the Committee Appointed to Enquire into the Official Conduct of Samuel Chase and Richard Peters, Telegraphe and Daily Advertiser (Apr. 9, 1804) at 2
  9. United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14692D) (Marshall, C.J.)
  10. President James Monroe to George M. Dallas, Feb. 14, 1818, Records of the Office of the Judge Advocate General (Navy), Record Group 125, (Records of General Courts Martial and Courts of Inquiry, Microcopy M-272, case 282), National Archives Building
  11. Cong. Globe, 27th Cong., 2d Sess. 580 (1842)
  12. H.R. Rep. No. 271 at 1–18 (27th Cong., 3d Sess., 1843)
  13. H.R. Rep. No. 684 at 4 (29th Cong., 1st Sess., 1846)
  14. Richard Hildreth, The History of the United States of America 486-89, 584-85 (New York, Harper & Brothers Publishers 1856)
  15. A Compilation of the Messages and Papers of the Presidents 17891897 at 2284 (James D. Richardson ed.1896)
  16. James Wilson, On the Legislative Authority of the British Parliament, in 2 The Works of James Wilson 505, 520 (Chicago, Callaghan & Co. ed. James DeWitt Andrews 1896)
  17. The Writings of Thomas Jefferson Volume IX 1807–1815 64 (Paul Leicester Ford ed.) (1898)
  18. Irwin S. Rhodes, What Really Happened to the Jefferson Subpoenas, 60 A.B.A. J. 52, 53 (1974)
  19. Select Comm. on Pres. Campaign Activities, Appendix to the Hearings of the Select Comm. on Pres. Campaign Activities of the U.S. Sen.: Documents Related to the Select Comm. Hearings, Pt. I, at 740 (1974)
  20. James K. Polk, 1845–49, Cent. Intelligence Agency (Mar. 19, 2007)
  21. Louis Fisher, Jefferson and the Burr Conspiracy: Executive Power Against the Law, 45 Presidential Studies Q. 157, 169 (2015)

State Court Immunity

President Trump’s lawyers have argued that the Constitution makes the president completely immune from being sued in state court even when the lawsuit concerns pre-office conduct. The president first made this argument in Zervos v. Trump, which concerned allegations that President Trump defamed a woman who accused him of groping her. He reprised the arguments in People of the State of New York v. Trump, which concerned allegations that the Trump Foundation violated New York charities law.

These arguments are wrong as a matter of constitutional law. In Clinton v. Jones, the Supreme Court made clear that presidential immunity only extends to the president’s official acts, not his unofficial conduct. Of course, President Trump could not take an official presidential act before assuming office.

Protect Democracy has filed amicus briefs in both of the aforementioned cases reiterating the argument made in Clinton v. Jones and arguing that the president should not be immune from suit in state court. This is the first time this argument has been litigated.

Zervos v. Trump Documents

NY v. Trump Foundation Documents

Press Coverage

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