Kristy Parker is Counsel at Protect Democracy. She leads litigation to secure accountability for abuses of executive power and interference with government functions, and leads advocacy to reform the Department of Justice and protect its independence from politicization.
Trump’s unfounded claims shouldn’t be allowed to delay his federal conspiracy trial
Former President Donald Trump’s latest effort to derail the federal conspiracy trial arising out of his attempt to overturn the 2020 election is to argue that he is immune from criminal prosecution for actions taken while he was president, and that the charges against him should be dismissed.
Leaving aside the far-fetched idea that conspiring to impede the certification of an election he lost is among the president’s official duties, Trump’s immunity claim ignores long-standing law and practice governing the criminal liability of federal officials — including the president — and the foundational American legal principle that no one is above the law.
No court has ever suggested a legal basis for immunity from criminal prosecution for a former president. The Constitution’s text and history, and decades of conduct by congressional and executive branch leaders, make clear that such immunity does not – and should not – exist. In fact, the Supreme Court has repeatedly rejected the idea that there is any such thing as criminal immunity. And, prior to his indictment, Trump’s own lawyers repeatedly conceded in court that former presidents are not immune from criminal prosecution. As a result, Trump’s unprecedented claim should be rejected on the merits. And his strategy of raising an unfounded legal argument that he can use to try to delay the criminal proceedings against him should fail.
There’s no legal basis for criminal immunity for a former president
Trump’s motion to dismiss the conspiracy indictment claims that whether a former president is immune from criminal prosecution is an “open question” that should be answered in Trump’s favor. Trump contends this is so for two reasons. First, because no court has ever denied such a defense to a former president charged with a crime. And second, because the rationale for presidential immunity from civil suits for damages recognized in Nixon v. Fitzgerald supposedly also applies in criminal prosecutions.
Trump’s argument is misleading and wrong. No former president has ever been charged with a crime, so no court has considered this particular defense. In any case, long standing precedent, including Nixon v. Fitzgerald, establishes that former presidents are not immune from prosecution for criminal acts while in office.
Official immunity is a judicially-created doctrine that shields government officials from personal liability for their official acts in civil actions for damages (i.e., lawsuits brought by private plaintiffs seeking compensation for harm). Nixon is the leading case on presidential immunity. It grants the president immunity from civil actions for damages arising out of conduct within the outer perimeter of a president’s official duties, such as firing a subordinate.
But contrary to Trump’s suggestion that Nixon somehow also establishes immunity from criminal prosecution, Nixon expressly distinguished criminal and civil liability. In Nixon, the court described an “ongoing criminal prosecution” as precisely the type of situation in which judicial action may be needed to “vindicate the public interest,” and it specifically contrasted that with “a private suit for damages based on a President’s official acts,” which would not justify the court exercising jurisdiction. Justice Burger, in his concurrence, pointedly rejected the suggestion that the decision conferred “sweeping immunity for a President for all acts” and responded: “The Court does no such thing. The immunity is limited to civil damages claims.”
Nixon’s limitation to civil damages actions is squarely in line with the larger body of immunity decisions. Every case to consider whether executive branch officials are immune from criminal prosecution has decided they are not. As the Supreme Court noted in O’Shea v. Littleton in 1974, judges and other government officials can be prosecuted for acting under color of law to violate the Constitution. Accordingly, “[w]e have never held that the performance of the duties of judicial, legislative, or executive officers, requires or contemplates the immunization of otherwise criminal deprivation of constitutional rights. On the contrary, the judicially fashioned doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed by an Act of Congress . . .’
O’Shea v. Littleton quoted from another case, Gravel v. United States, decided in 1972, which explained that the Constitution’s Speech and Debate Clause (which prohibits legal actions against members of Congress arising out of their legislative duties) “does not purport to confer a general exemption upon Members of Congress from liability or process in criminal cases.” This is in recognition of “the judgment that legislators ought not to stand above the law they create but ought generally to [be] bound by it as are ordinary persons.” If the Speech and Debate Clause’s express protections for members of Congress do not confer general immunity from criminal prosecution so as not to “interfere with the administration of criminal justice,” then, as a matter of basic textual interpretation, the same must be true of the Constitution’s unwritten grant of presidential immunity.
While the Department of Justice has for decades taken the position that a sitting president has “temporary immunity” and cannot be prosecuted for any crime, it has concluded that he or she may be prosecuted after leaving office. And every case to consider whether sitting presidents – from Jefferson to Nixon to Trump – must comply with criminal subpoenas has decided that they must. This is true even in cases where the subpoena has related to an investigation of the president himself, implying the possibility of a future criminal prosecution. Most notably, in Trump v. Vance, the Supreme Court explained that future criminal liability was not a reason to relieve a president from complying with a subpoena while in office and noted that Trump “concedes . . . that state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term.”
The Constitution and decades of government conduct confirm that former presidents are subject to criminal prosecution
The history and text of the Constitution confirm the judicial consensus described above that former presidents were never meant to be immune from criminal prosecution – and thus above the law. The Impeachment Judgment Clause says a party convicted in impeachment shall be liable and subject to Indictment,” which is an acknowledgment that former presidents can be prosecuted. Contrary to Trump’s claim, it does not bar prosecutions if an impeachment subject is acquitted. And notably, Trump argued that he was not subject to impeachment after leaving office for his role in the effort to overturn the election, a ground on which many Senators voted to acquit him. Combined with his argument that he is immune from criminal prosecution, Trump claims that presidents cannot be punished at all for wrongful conduct committed at the end of their term, which flies in the face of the Constitution’s overarching design.
Accordingly, the Federalist Papers contemplate criminal liability for the president and make clear that he is not above the law: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
The Department of Justice has concluded that former presidents can be prosecuted, and past presidents and other high-ranking government officials have collectively assumed that former presidents are subject to criminal prosecution. For example, President Nixon was a subject of the Watergate criminal investigation and the Special Prosecutor concluded that his indictment was legally appropriate. President Ford offered, and Nixon accepted, a pardon on the premise that Nixon could have been indicted — the acceptance of a pardon is an admission of guilt.
President Clinton made a deal to avoid prosecution for his alleged grand jury perjury during an investigation by a Special Prosecutor. Furthermore, following Trump’s impeachment acquittal in 2021, then Senate Majority Leader Mitch McConnell publicly acknowledged that Trump could be prosecuted for his coup attempt: “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.” Finally, Trump’s own lawyers argued this. As noted, they did so in Vance, and also when they argued that Trump could not be prosecuted for shooting someone on 5th Avenue while he was the sitting president, but “once a president is removed from office . . .this is not a permanent immunity.”
Trump should not be permitted to delay trial with appeals of his non-existent immunity defense
Trump and his lawyers have made it clear that their primary defense strategy in the federal conspiracy case – and every other case in which Trump is a defendant – is delay. They hope that Trump will once again be elected president and can dispose of the federal indictments against him. His groundless immunity claim is part of that strategy. If Judge Chutkan denies his motion, as the governing law demands, Trump will claim he is entitled to immediate appeal, available when a federal official raises a “substantial” claim of immunity. And he will use that appeal to delay, delay, and delay.
However, Trump’s claim is anything but substantial. Instead, he asserts an immunity defense that is inconsistent with established law. Relying on the fact that his own allegedly criminal behavior is unprecedented, he pretends his made-up criminal immunity argument presents an “open question.”
But the Supreme Court has held that officials can be on notice of established law “even in novel factual circumstances” when the law is readily apparent. That is the case here – there is no such thing as criminal immunity for anyone, let alone the former president. The courts should dispose of his motion swiftly and not allow Trump to delay his trial on that basis.
Trump is Not Immune for Actions on Jan. 6, DC Circuit Rules in Civil Case filed by Protect Democracy
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