Trump’s galling immunity stunt is doomed. But it may delay his trial
WASHINGTON >> Donald Trump’s lawyers have filed their long-promised motion to dismiss his federal indictment on election-related charges, claiming he possesses absolute immunity from criminal prosecution for his actions. The document is full of bluster masquerading as legal argument. It won’t get the case dismissed — but it might just do the intended trick, which is to delay his trial beyond the scheduled March 2024 start.
Trump’s audacious argument, buttressed with cherry-picked quotes and misleading citations, is that he can’t be prosecuted for any actions he took as president, as long as they were within the “outer perimeter” of his presidential authority.
This absolute immunity, his lawyers argue in a motion filed Thursday, is essential to “ensure the President may serve unhesitatingly, without fear that his political opponents may one day prosecute him for decisions they dislike.” Indeed, they contend, Trump’s actions “to ensure election integrity” are not only within that “outer perimeter” — they lie “at the heart of his official responsibilities as President.”
This contention is unconvincing, and that’s putting it charitably. For instance, the Justice Department has long maintained that sitting presidents can’t be prosecuted for their acts. But that position, assuming it’s correct, presumes that indictment and prosecution are available once a president leaves office.
Otherwise, what was special counsel Robert S. Mueller III doing investigating Trump’s official conduct and concluding that there were 10 instances of possible obstruction of justice? That problematic conduct was, to quote Trump’s lawyers, even more “at the heart of his official responsibilities” than were Trump’s frantic efforts to pressure state officials and his own vice president to help him overturn the election results.
In Trumpworld, a president, current or former, can never be held responsible for his actions. During Trump’s second impeachment trial, a different set of Trump lawyers insisted that the Senate had no authority to act because he was no longer in office. Republican senators, including Minority Leader Mitch McConnell (Ky.), argued that Trump should not be convicted for that very reason. “We have a criminal justice system in this country. We have civil litigation,” McConnell said. “And former presidents are not immune from being held accountable by either one.”
But, according to Trump, they are. Without even bothering to try to explain away the inconsistency, his criminal lawyers insist that “impeachment and conviction by the Senate provide the exclusive method of proceeding against a president for crimes in office.”
And not only that: Trump has the nerve to argue that the acquittal — an acquittal he secured in part based on the argument that the Senate lacked jurisdiction to try him — means a criminal prosecution is now barred.
“Because the Constitution specifies that only ‘the Party convicted’ by trial in the Senate may be ‘liable and subject to Indictment, Trial, Judgment and Punishment,’ it presupposes that a President who is not convicted may not be subject to criminal prosecution,” the motion states. “President Trump was acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution. The special counsel cannot second-guess the judgment of the duly elected United States Senate.” What gall.
At bottom, Trump’s motion is an effort to bootstrap a 1982 Supreme Court case, Nixon v. Fitzgerald, in which the court ruled that presidents are absolutely immune from civil suits for their official actions. That’s where the “outer perimeter” language comes from. But that case has never been understood to apply to criminal prosecutions of former presidents, and for good reason. “In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages,” the court wrote.
But there is a big difference between the threat of a barrage of private lawsuits and the actions of duly authorized prosecutors. And Nixon v. Fitzgerald itself noted the “lesser public interest in actions for civil damages than … in criminal prosecutions” — a distinction Trump’s lawyers acknowledge only in a grudging footnote.
In one particularly brazen move, Trump’s lawyers quote extensively from a Justice Department friendof-the-court brief in a lawsuit filed against Trump in order to make the case for broad presidential immunity.
“In all contexts, questions of Presidential immunity must be approached with the greatest sensitivity to the unremitting demands of the presidency,” they quote the brief as saying. They even attach it as an exhibit — but never acknowledge that the Justice Department’s exhortations about presidential immunity were limited to the context of a civil case. The department explicitly said, “the United States does not express any view regarding the potential criminal liability of any person for the events of January 6, 2021.”