Trump’s claim of Immunity – A License to act with Impunity

Breakfast with Bwana

By Anil Madan

Donald Trump faces some 90 criminal charges, most for acts while he was president, and some after he left office. In the case charging him with using illegal efforts to overturn the results of the 2020 presidential election and to defraud the US government, Trump moved to have the entire case dismissed on the grounds that a President cannot be prosecuted for acts committed while he was president. Added to that is the claim that the President is answerable only to Congress, and not in the courts.

Trump claims presidents ‘have absolute immunity,’ But judges seem skeptical. Pic – Common Dreams

This latter claim is based on the text of the US Constitution dealing with punishment upon impeachment: “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.”

Based on this language, Trump argues that the president is answerable only to Congress under the impeachment clause and, if he had been convicted, he would be answerable for criminal acts. However, since he was not convicted in his impeachment trials, his acquittal insulates him from any further liability. Hence, the claim is, he is immune from liability.

In the early days of this nation’s history as a newly established Republic, the notion of separation of powers — among the executive, legislative, and judicial branches — was a key element of the structure of the government. Trump’s lawyers argued that “the immunity of the President’s official acts from judicial second-guessing has been treated as self-evident and foundational from the dawn of the Republic.” They cited Chief Justice Marshall’s opinion in the landmark case, Marbury v. Madison (1803) that “by the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country in his political character, and to his own conscience.” And that, “the acts of such an officer, as an officer, can never be examinable by the courts.”

The qualifying phrases “in the exercise of which he is to use his own discretion” and “the acts of such an officer, as an officer,” act as delimiters of a supposed absolute immunity.

Trump’s attack on the validity of the indictments started in the federal district court for the District of Columbia where the criminal charges were brought. Judge Tanya Chutkan, the federal district judge assigned to the case, ruled on Trump’s motion to dismiss the indictment in its entirety on the claimed ground that the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he served as President of the United States, so long as he was not both impeached and convicted for those actions.

Judge Chutkan ruled that the Constitution’s text, structure, and history do not support that contention. She wrote: “No court—or any other branch of government—has ever accepted it. And this court will not so hold. Whatever immunities a sitting president may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” In an emphatic ruling, Judge Chutkan noted that former Presidents enjoy no special conditions on their federal criminal liability. Trump is subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts while in office.

Trump’s position evokes memories of President Nixon’s interview with Richard Frost where Frost asked if the President could decide that it’s in the best interest of the nation and do something illegal. Nixon replied: “Well, when the president does it … that means that is not illegal.” A careful reading of the transcript of the Frost-Nixon interview shows that Nixon did not go as far as Trump. He seemed to suggest that those who acted under the President’s direction in such situations would be immune from prosecution and emphasized that burglaries are per se illegal, but when undertaken because of an expressed policy decided by the President in the interests of national security, then that means what would be technically illegal does not subject those who engage in such activity to criminal prosecution. And Nixon expressly stated: “I do not mean to suggest that the President is above the law.”

President Nixon’s comments show his appreciation of the distinction between the need for unfettered discretion that the President must have in his ability to make and carry out executive policy decisions, versus the fundamental American notion that no person is above the law.

Trump, on the other hand, tried to turn the proposition on its head and essentially argued that there was no law above him as President.

The text of the Constitution is our starting point. It contains no provision conferring immunity on a President. In contrast, the Constitution grants to Senators and Representatives, privilege from arrest while attending sessions of their respective Houses, and in traveling to and returning from the same, and they may not be questioned in any other Place for any Speech or Debate in either House. The only exceptions are for Treason, Felony and Breach of the Peace. The omission of presidential immunity may therefore be treated as deliberate.

Trump’s approach was to take the language of the Impeachment Judgment Clause quoted above and extrapolate the argument that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Judge Chutkan ruled that a grant of absolute immunity to Trump would contravene the plain meaning and original understanding of the clause, as well as common sense.

Against this background, Trump appealed to the Circuit Court of Appeals for the District of Columbia Circuit, Judge Chutkan’s refusal to dismiss the indictment against him on immunity grounds.

On January 10, the appellate court heard oral argument on the appeal before a three-judge panel. Such a panel is the norm and I mention it here because whichever side loses when the panel renders its decision, can apply to the court to have what is known as an en banc rehearing, i.e., a hearing before all the judges of the Circuit Court of Appeals. Such a hearing is discretionary, and the court may, but is not required to, grant it. After that, the losing party can petition the United States Supreme Court for a writ of certiorari, which is another discretionary appeal to the highest court in the land. The Supreme Court may grant certiorari or not. If the Supreme Court does not grant certiorari, it will sub silentio, affirm whatever decision the appellate court makes.

A key part of Trump’s argument in the appellate court is that he was merely carrying out his constitutional duty to ensure that election laws are upheld. One of the panel judges, who was appointed by President Bush, was skeptical: “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate the criminal law,” she said.

Putting aside the difficulty in deciding what an official act of the presidency is, and where the president is serving purely personal interests, such as campaigning for reelection or engaging in election contests whether brought by him or his opponent, it was necessary to test the limits of Trump’s legal argument. One of the judges asked his lawyer if a president ordered SEAL Team 6, the Navy commando unit, to assassinate a president’s political rival, would he be subject to criminal prosecution. Trump’s lawyer answered that such a president would surely be impeached and convicted, but he persisted in his position that no court would have jurisdiction to oversee or hear a murder trial unless there was first an impeachment and a conviction.  In the case of acquittal by the Senate, there would be no prosecution possible.

Noting that one of the principal pillars on which Trump’s lawyer’s argument rests is the notion that the doctrine of separation of powers precludes other branches of the government from undertaking prosecutions of the executive (President), one of the judges observed that Trump’s lawyer’s concession that a President could be prosecuted if he had been impeached and convicted, undercut his argument: “Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away, and the issues before us are narrowed to are you correct in your interpretation of the impeachment judgment clause?” she said.

Whereas it is unwise to try to extrapolate how appellate judges will rule based on their questions and comments during oral argument, it certainly seemed that the judges were not receptive to Trump’s claim of immunity or the arguments of his lawyers.

Ultimately, the legal ruling may turn on the distinction between the discretionary decisions that a President must make in carrying out his executive responsibilities, versus the ministerial acts he is required to do in conformity with law. One of the judges did ask about this distinction but it seemed lost on Trump’s counsel.

A couple of procedural questions arose that may mean no decision on this appeal or no decision until the district judge (Chutkan) conducts a further analysis. The first is a question of jurisdiction, whether the appeals court can even entertain Trump’s appeal in the absence of a final judgment. There is precedent suggesting that the appeal is premature. The second is the question whether Judge Chutkan should be asked to rule which of Trump’s actions, if any, fall within the discretionary acts exception and which acts were either personal or did not involve presidential duties. The jurisdictional challenge is a difficult obstacle to overcome. The court may well remand the case to the district court for trial without a decision. On the other point, I do not think the appellate court will dodge making a ruling since the judges can discern which acts are official executive duties and which are not.

My overall impression is that Trump’s lawyers did not come close to making a compelling case for presidential immunity.


Mauritius Times ePaper Friday 12 January 2024

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