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Former President Donald Trump may claim that he has absolute immunity from criminal prosecution for everything he did while in office. This argument, like so many Trump has made, is without legal support.
Lawyers like to look to precedent, but there is not much law out there, because no other president in our 234-year history has ever been indicted or prosecuted. But the law, such as it is, is decidedly against Trump.
Neither the Constitution nor any statute of Congress prohibits prosecution of a sitting president, much less a former president (although a Department of Justice memorandum says that they won’t prosecute presidents while they are in office). Chief Justice Roberts has reaffirmed, in his decision on releasing Trump’s tax returns, that no one, even the president, is above the law.
The Constitution gives no criminal immunities to former government officials after they leave office. The fact that the Constitution’s Impeachment Clause allows courts to try a president after his removal implies that courts must be able to try him, even if he has been acquitted of the same charges in the Senate.
History has assumed that the indictment of a former president for criminal conduct in office would fly. This has been the position of the Department of Justice through both Republican and Democratic administrations. President Gerald Ford agreed, at least implicitly, when he pardoned former President Nixon “for all offenses against the United States which he…has committed or may have committed or taken part in.”
But McConnell, who, as Senate majority leader, rejected calls by Senate Democrats for a speedy trial during Trump’s final days in office, said Trump was constitutionally ineligible for conviction, since the punishment is removal and Trump was already out of office. He agreed that “impeachment was never meant to be the final forum for American justice,” and suggested Trump could be subject to criminal prosecution in the future. “We have a criminal justice system in this country,” he said. “We have civil litigation. And former presidents are not immune from being held.”
The Senate could have ended the entire controversy that day. Had a few more Republicans voted to convict Trump of “high crimes and misdemeanors,” he would have been disqualified “to hold and enjoy any Office of honor, Trust or Profit under the United States.” In other words, “Game over.”
The Supreme Court has held that a president is absolutely immune from civil liability for his official conduct in office, including the “outer perimeter” of those duties, and this would apply to a former president as well. Trump is facing multiple civil lawsuits in federal court accusing him of conspiring to incite violence and disrupt the certification of the 2020 presidential election results. He is asserting that he has total immunity against the lawsuits.
The Justice Department, however, while acknowledging that presidents have strong protection against being sued over their official duties, contends that allegations Trump encouraged “imminent private violent action” would not fall within the “outer perimeter” of the duties of a sitting president. The district court rejected Trump’s claims for a broad immunity, and the issue is now on appeal to the D.C. Circuit.
But the court has never held that a president is immune from responsibility for crimes committed in office. Most arguments involving a former president revolve around what kind of conduct occurred in office, and whether the alleged conduct was accomplished within the scope of the president’s official duties. A criminal conspiracy to defraud the U.S., to obstruct governmental function, to delegitimize citizens’ right to vote or to have their votes counted cannot conceivably be part of a president’s official duties, and thus would not appear to be immunized even were they asserted in a civil action for money damages.
Trump may argue that the role of punishing presidents for criminal acts remains exclusively with the Senate. If there were anything to this position, the public would fall victim to a circular legal “shell game.” You can’t impeach a former president because he is no longer in office, and you can’t prosecute him either because the sole remedy is impeachment. This argument should be rejected out of hand.
In short, presidential immunity from civil actions covers situations relating to the official duties of the president, including those in the “outer perimeter” of those duties. Immunity does not extend to unofficial conduct, and never to criminal conduct.
Even civil immunity does not attach merely because the action is based upon conduct during the president’s time in office. Not everything a president does in office is in the discharge of his federal duties.
The cases hold that immunity does not provide federal officers “carte blanche…to proceed as they please” in carrying out every act within the scope of their employment. Rather, immunity requires the defendant to show both that he was performing “an act which he was authorized to do by the law of the United States” and that, in performing that authorized act, “he did no more than what was necessary and proper for him to do.”
The standard is a stringent one: “the acts themselves must of necessity be required in the discharge of the officer’s duties.”
Bottom line for Trump: No immunity from prosecution, but maybe some delay if he moves to dismiss the indictment on grounds of alleged presidential immunity. It is still feasible to have a trial in D.C. before the election. Special Counsel Jack Smith has asked for a trial on the election case as early as Jan. 2, 2024, and there is every reason to believe that Judge Tanya Chutkan will oblige him. That date has also been endorsed by a number of conservative legal luminaries.
The unthinkable problem is that, even if Trump runs from jail, he can still be the nominee of the Republican Party, and can still be elected president of the United States.
James D. Zirin, author, and legal analyst, is a former federal prosecutor in New York’s Southern District and host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.