Trump’s Latest Gamble Is Outlandish—but It Just Might Work

Former President Donald Trump’s legal team went big in their latest effort to derail the prosecution against him for conspiring to interfere in the 2020 election: They filed a motion to dismiss that could be called a motion to make U.S. presidents into kings.

The 52-page legal motion filed in the D.C. case asks U.S. District Judge Tonya Chutkan to dismiss the indictment based on the concept of “presidential immunity” that Trump argues makes him immune from any criminal prosecution for acts he took as president. The legal precedent underlying the motion is that presidents have been immune from civil lawsuits over actions taken while they served as president and Justice Department policy that sitting presidents cannot be indicted while in office. But Trump seeks to expand this immunity from civil lawsuits for money and DOJ’s policy of forbearance from prosecuting a sitting U.S. president into a limitless doctrine of executive immunity that would green light nearly any criminal actions committed by a president.

Trump’s lawyers argue that Special Counsel Jack Smith’s charges against Trump must be dismissed because, “Here, 234 years of unbroken historical practice–from 1789 until 2023– provide compelling evidence that the power to indict a former president for his official acts does not exist.” While they are right that it has never been done before–arguably because no president has shown such brazen disregard for the law–the historical fact that it has not been done before adds nothing to the legal basis for the defense.

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The Supreme Court case of Fitzgerald v. Nixon established absolute immunity for civil liability for actions by a president while in office. But the “absolute” qualifier was limited in that case to what has become known as the “outer-perimeter” zone of official duties, which made clear that presidential conduct that fell outside that boundary could be actionable in a civil context. The lawsuit filed by Paula Jones against former President Bill Clinton for sexual harassment was one such example of actions that fell outside the zone of official presidential conduct. In any case, Fitzgerald v. Nixon never established an absolute immunity against criminal prosecutions, so even though the DOJ and Jack Smith may be doing something that has never been done before, it’s Trump who is trying to extend legal precedent in a way never done before. Indeed, in another case involving former President Nixon, the Supreme Court famously held that Nixon could not use executive privilege to shield himself from a criminal grand jury’s subpoena for the tapes he had made while in office.

The DOJ will no doubt take apart Trump’s arguments in its response and Judge Chutkan is almost certain to side with federal prosecutors and reject Trump’s effort to dismiss the case. Trump–who loves to say: “I will appeal”–will certainly then try to appeal, and that is where the legal questions become sticky.

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Appeals pre-trial are limited in criminal cases, with most arguments being taken up only after a trial and conviction (prosecutors cannot appeal an acquittal). But in certain limited situations an interlocutory appeal could be allowed, meaning the issues raised by Trump could be appealed first to the D.C. Circuit Court of Appeals and then to the U.S. Supreme Court. Precedent exists for allowing disputes over immunity to be appealed pre-trial. That’s because arguments involving absolute immunity are different than arguments involving factual innocence (I didn’t’ do it!) and other legal defenses (I did it but it’s not illegal) given the common-sense notion that a person who isn’t supposed to be subject to a legal process shouldn’t have to go all the way through before a trial and then be found that the trial never should have happened. Some of that precedent involves claims of double-jeopardy, where a defendant argues that they are “immune” from a prosecution in the sense that the double-jeopardy clause of the Fifth Amendment bars their prosecution.

Indeed, one of the arguments Trump also makes is precisely a double jeopardy argument, which looks silly on its face but may have strong strategic value in getting an interlocutory appeal. Specifically, Trump argues that his acquittal on impeachment by the Senate for his Jan. 6 conduct operates as a bar against his prosecution for election interference because to prosecute him criminally would be double jeopardy. That analogy is simply wrong, since by definition an impeachment is a political proceeding, not a criminal case brought by the government. The mere invocation of the double jeopardy argument, however, will bolster Trump’s chances of getting an appeal heard prior to his criminal trial starting.

If Trump’s motion to dismiss based on his claims of absolute presidential immunity are found to be appealable pre-trial on an interlocutory basis, then the case almost certainly will reach the Supreme Court. Although Trump has frequently been disappointed by SCOTUS not backing his legal theories, this one may be different because it involves expansion of executive authority. Trump’s appointments of three young conservative justices–Amy Coney-Barrett, Neil Gorsuch, and Brett Kavanaugh–has created a powerful conservative majority. That conservative majority has indicated a leaning towards favoring expansion of presidential authority under the theory of the “unified executive theory.” Most recently, in the case involving whistleblowers, three justices (Thomas, Kavanaugh and Coney-Barrett) indicated their willingness to consider cases involving this theory in the future. A decision by SCOTUS upholding immunity from criminal prosecution for presidents would do more than allow Trump to escape accountability. It would transform U.S. presidents from chief executives into kings.

Trump’s motion to dismiss is far from unexpected. To the contrary, it’s been long predicted and the question of delays resulting from a potential pre-trial appeal an obvious part of Trump’s general strategy to delay all the cases against him until after the next election. In light of this, the question again arises: why did the DOJ wait so long to start its case?

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