The Trump Defense – Presidential Immunity
President Trump is being federally charged with four criminal counts for his efforts to overthrow the 2020 Presidential Election, culminating in the takeover of the US Capitol by his supporters on January 6. His defenses are twofold: Presidential Immunity and the First Amendment guarantees of freedom of speech. His strategy is to delay, delay, delay until after the 2024 Presidential election which he hopes to win, and then he will order the proceedings against him to be dropped.
There are two important Supreme Court precedents on Presidential Immunity. In Fitzgerald v. Nixon, 457 US 731 (1982), the Supreme Court concluded that Presidents are immune from civil litigation for their actions and inactions in furtherance of their presidential duties during their time in office. The case involved an individual whose job was eliminated during a governmental reorganization; he maintained his job was eliminated due to his criticism of the Administration. https://supreme.justia.com/cases/federal/us/457/731/ All nine justices distinguished between civil and criminal liability for Presidential misconduct in office, and in dicta specified that there was no Presidential Immunity from criminal prosecution for crimes committed by a President during his time in office.
In Jones v. Clinton, 520 US 681 (1997), the Supreme Court held there was no Presidential Immunity for Clinton’s alleged sexual harassment of Paula Jones during his tenure as Governor of Arkansas, and the President must sit for a deposition and trial during his Presidency. https://supreme.justia.com/cases/federal/us/520/681/ The court distinguished its ruling from the Nixon case in that the alleged misconduct was a private matter and occurred not during his Presidency, but while Clinton was Governor of Arkansas. It theorized (spectacularly erroneously as it turned out) that there would be little to no burden on the President’s time to sit for a deposition in the matter. At the subsequent deposition, Clinton memorably denied having sexual relations with Monica Lewinsky in the White House. This led in turn to the voluminous Starr Report, Clinton’s impeachment by the House, and his acquittal after the Senate trial.
Judge Chutkan rejected Trump’s Presidential Immunity defense, as it does not apply to criminal proceedings. https://www.documentcloud.org/documents/24199164-12123-chutkan-ruling Trump is appealing to the DC Circuit Court of Appeals; his strategy is further delay; Special Counsel Jack Smith has asked the DC Circuit Court of Appeals for expedited review and the US Supreme Court for immediate review of Trump’s claims of Presidential Immunity. These have been granted in the case of the Court of Appeals; https://www.nbcnews.com/politics/donald-trump/court-grants-special-counsels-request-expedite-trumps-immunity-appeal-rcna129615, and Trump’s response to the Supreme Court is due on December 20. https://www.courthousenews.com/supreme-court-asked-to-consider-trumps-presidential-immunity-claim/
The DC Court of Appeals has already rejected Trump’s argument for Presidential immunity for his actions leading up to and during the January 6 insurrection in a civil matter filed by officers injured by Trump supporters during the insurrection. https://www.cadc.uscourts.gov/internet/opinions.nsf/A3464AEB2C1CB89985258A7800537E73/$file/22-5069-2029472.pdf The court’s reasoning distinguished between office holder Trump who would enjoy presidential immunity from civil litigation for his Presidential decisions in office, and office seeking candidate Trump who has no presidential immunity from civil litigation for his actions in campaigning for the office. The court did conclude that sitting on his hands watching TV while the insurrections unfolded would likely fall under inaction protected by Presidential Immunity.
The Second Circuit Court of Appeals also recently rejected Trump’s argument for Presidential Immunity in defaming the writer, E. Jean Carroll, saying Trump’s three-year delay in raising the issue constituted a waiver of that defense. https://www.courthousenews.com/second-circuit-strikes-down-trumps-request-for-presidential-immunity/
Judge Chutkan’s decision draws the distinction between criminal liability, the case pending before her, and civil liability, the cases brought by the Capitol and DC police officers. She concludes there is nothing in the Constitution, the statutes or the court precedents that provides for “Presidential Immunity” of an ex-President for criminal conduct in office. She memorably concludes there is no “get out of jail free card for ex-Presidents” who have broken or break the criminal law.
She reviews the text of the Constitution and finds nothing that provides for Presidential Immunity. She reviews the history and writing of the founding fathers and again finds nothing that provides for Presidential immunity. In fact, she finds the historical record is quite the opposite as the Founding Fathers had revolted against a hereditary absolute monarchy where the sovereign was immune from litigation – i.e. sovereign immunity. They substituted democratic elections, checks and balances, the rule of law, and the Bill of Rights protecting individual citizens, for the absolute monarchy that they had lived under and now rejected. Washington retired gracefully to Mount Vernon after two terms as President, setting an important precedent for peaceful Presidential transitions that held from the 1790’s until Trump sought to overthrow his defeat at the polls in 2020.
There are few precedents of ex-Presidents seeking to overthrow the American government after an election defeat -- only Donald Trump. Only a handful of ex-Presidents and ex Vice Presidents have been criminally charged. Aaron Burr, who had been Jefferson’s Vice President during his first but not his second term, sought thereafter to establish his own empire in the Southwest; he was tried for treason and acquitted. Spiro Agnew, Vice President under Nixon, was being investigated and about to be charged for bribery and kickbacks during his tenure as Governor of Maryland, which kickbacks continued during his Vice Presidency. He resigned, pleaded nolo contendere, and paid a $10,000 fine and was sentenced to three years’ probation. Richard Nixon was impeached, resigned, and fully pardoned by Gerald Ford for his criminal involvement in Watergate’s spying and cover-up scandals. Bill Clinton was impeached by the House and acquitted by the Senate for lying in a deposition about his relationship with Monica Lewinsky. He paid a civil contempt fine for his failure to testify truthfully in the Paula Jones case, and he paid a further fine of $25,000 to wrap up the Special Counsel’s investigation into his misconduct.
Nixon sought to cling to power by illegal means during his 1972 re-election campaign, leading to his subsequent impeachment and resignation, even after he had overwhelmingly been re-elected. President Ford pardoned him for all his criminal behavior while in office, a pardon which Nixon accepted.
Trump also sought desperately to cling to power after his overwhelming defeat in 2020, and he now seeks to return to power where if successful, he will be able to direct his Attorney General to drop all charges against him and his minions; this may be his best chance to avoid criminal liability for his actions after his defeat in 2020. This may also stay the civil litigation for his actions in trying to overthrow a free and fair election in 2020.