Trump’s Claim That He Can’t Be Prosecuted Collides With Precedents

WASHINGTON — Among the bold claims in the motion filed last week by former President seeking to dismiss the federal indictment accusing him of conspiring to undermine the 2020 election, there was a significant concession. The key Supreme Court precedent the motion relied on for claiming “absolute immunity” from criminal prosecution, his lawyers acknowledged, did not address criminal prosecutions.

The motion cited the 1982 precedent, Nixon v. Fitzgerald, at least 40 times over 52 pages. But that decision merely held that a former president is immune from lawsuits in civil cases — ones from private litigants seeking money — and then only if the suits concerned conduct “within the ‘outer perimeter’ of his official responsibility.”

, a lawyer for Trump, conceded that “no court has addressed whether such presidential immunity includes immunity from criminal prosecution for the president’s official act.” The question, he wrote, is serious and unsettled.

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Should Trump lose in the trial court and on appeal, there is every reason to think that he will ask the Supreme Court to step in.

Lauro was right to say that there is no other Supreme Court decision squarely on point. But the leading candidates all point in a different direction, as does the most thorough lower-court decision considering Trump’s conduct in trying to subvert the election.

Legal experts said the overall landscape does not look promising for Trump and his lawyers.

“They’re trying to make bricks with very little straw,” said Frank O. Bowman, a law professor at the University of Missouri. “And I can’t imagine the Supreme Court would buy this for an instant, at least not a majority of them.”

But Bowman added that the true purpose of the motion was not to obtain immunity from prosecution. It was, he said, delay.

The 1982 precedent arose from a lawsuit brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, President Richard Nixon had been out of office for several years.

By a 5-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis Powell wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

That sounds generally helpful to Trump, at least if you accept the motion’s contention that Trump’s relentless efforts to subvert democracy were part of his official duties. But it also seems pretty clear that the decision addressed only what it called “damages liability,” meaning civil cases seeking money, and not criminal prosecutions.

Powell’s majority opinion noted that “the court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.” He explained that “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.”

Chief Justice Warren Burger underscored the point in a concurring opinion. “The immunity is limited to civil damages claims,” he wrote.

There are good reasons to treat civil suits and criminal prosecutions differently, Bowman said. “The danger against which Fitzgerald and other similar cases are to some extent trying to protect is the danger of abusive, harassing private litigation,” he said.

Other Supreme Court precedents seem to be of no help to Trump.

In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.

Two precedents on criminal investigations seem closer to the mark.

In United States v. Nixon in 1974, the Supreme Court unanimously ruled that Nixon, then still in office, had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting claims of executive privilege.

“Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Burger wrote.

And more recently, the Supreme Court ruled by a 7-2 margin in Trump v. Vance in 2020 that Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority.

Those two decisions do not directly answer the question presented in the recent motion, concerning as they do the obligation to produce evidence rather than criminal liability. But they are certainly suggestive.

The most extensive and pertinent ruling may be one from Judge Amit Mehta of the U.S. District Court in Washington. He rejected Trump’s claim of absolute immunity in a civil suit from several members of Congress and police officers who sought to hold him accountable for his conduct relating to the Jan. 6 attack on the Capitol.

“The court well understands the gravity of its decision,” Mehta wrote in explaining why he was ruling against Trump. “But the alleged facts of this case are without precedent.”

Mehta went on: “After all, the president’s actions here do not relate to his duties of faithfully executing the laws, conducting foreign affairs, commanding the armed forces or managing the executive branch. They entirely concern his efforts to remain in office for a second term. These are unofficial acts, so the separation-of-powers concerns that justify the president’s broad immunity are not present here.”

Trump’s legal team was attracted to the immunity argument in the criminal case for at least two reasons. Not only is the issue partly unresolved, but a ruling on it will be, unlike ones on other challenges to the indictment, subject to immediate appeal to the U.S. Court of Appeals for the District of Columbia Circuit, which is also reviewing Mehta’s decision.

And if Trump loses in the appeals court in either case, the Supreme Court awaits.

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