The Special Counsel Challenges Trump’s Immunity Claim
Last week, I reviewed Donald Trump’s Supreme Court brief for presidential immunity. It came after the Supreme Court had framed the issue this way: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”
My article noted that Trump did not argue that his actions around January 6, 2021, were “official acts.” Instead, he minimized his actions as phone calls, and claimed immunity on that basis. If anything, I concluded, Trump’s response demonstrated that his appeal to the Supreme Court was not serious, but solely a means to delay his trial.
The Special Counsel has now filed his reply brief, and of course it describes far more important Trump activities than phone calls. According to the Special Counsel, the grand jury found, among other things, that Trump had attempted to overturn the legitimate results of the 2020 presidential election by organizing fraudulent slates of electors in seven targeted states, causing them to send false voting certificates to Congress; attempting to enlist the Vice President to fraudulently alter the election results; and directing supporters to go to the Capitol and obstruct the proceeding.
In summary, then, “Petitioner [Trump] is charged with crimes that, if proved at trial, reflect ‘an unprecedented assault on the structure of our government.’”
Against this, Trump argued that—to be effective—any President must be relieved of concerns about criminal liability after he leaves office, that charging him with a crime will hinder his and future presidents’ effectiveness.
To this, the Special Counsel replies,
The Framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid these dangers. They designed a Constitution that would ensure an effective and energetic President under Article II—but one who was accountable to justice under laws passed by Congress under Article I.
And:
Petitioner asserts a novel and sweeping immunity from federal criminal laws that govern all citizens’ conduct. Under this Court’s established separation-of-powers framework, a claim of presidential exemption from a statutory limitation requires the President to identify an Article II basis [where the Constitution empowers the President] that precludes the application of that congressional act…No presidential power at issue in this case entitles the President to claim immunity from the general federal prohibitions supporting the charges.
Here is where the idea that “official duties” links up with Article II, allowing the Court to decide that a sitting President could ignore the laws while dealing with the complicated issues of his office, but still permit his prosecution after he has left office for illegal acts that were not within his Article II official duties.
As noted above, Trump has not yet made any effort to claim that his actions, as described in the indictment, were part of his official duties. However, he will have a second opportunity—another brief before oral argument—with which he could argue that the actions cited in the indictment were within his official duties.
In any event, this will be a difficult argument for Trump to win. As the Prosecutor’s brief notes,
[N]either Article II nor any other constitutional provision gives the President any role in certifying the election of his successor, [so] petitioner cannot make a viable claim that the President’s constitutional role renders it essential for him to engage in the criminal conduct alleged in the indictment.
Even though he didn’t argue that his activities on and before January 6 were within his official duties, Trump still has one argument for immunity. Before the Federal Court of Appeals, and again in his initial Supreme Court brief, he argued that a President cannot be charged for any crime unless he has first been impeached and convicted by the Senate. The source of this claim is what is called the “Impeachment Judgment Clause” of the Constitution, which says:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of Honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment according to Law.
Trump claims this clause says that he cannot be tried for any crime unless he has first been impeached and convicted, but that is a misreading. As the Special Counsel’s brief points out, “scores of federal officers have been criminally prosecuted [while] fewer than two dozen have ever been impeached by the House,” and “Courts have uniformly rejected the claim that criminal prosecution may occur only after impeachment and conviction.”
Trump’s first brief has not materially advanced his case.
Learn more: Trump’s Ukraine Sellout | Trump’s Supreme Court Brief Reveals a Motive Other Than His Immunity | The Supreme Court Tees up Trump’s Immunity Claim | Trump’s Trial Luck Holds