The federalist

Trump’s immunity defense could result in dismissal of election indictment.

Thursday afternoon in a Washington, D.C., federal court, former President Donald Trump filed⁣ a motion to dismiss the case‍ pending against him there for⁢ his alleged actions in the aftermath of the 2020 election. The⁣ motion cites presidential immunity as a ground to dismiss the case in‍ its entirety.

The motion persuasively argues that the D.C. case should be dismissed, and‌ if past practice is​ any guide all proceedings could and should be stayed while this issue is litigated fully, all the way up to the Supreme Court if necessary. Notably, this same‌ reasoning should apply to the ongoing Georgia prosecution as well. A number ⁢of legal commentators have⁤ anticipated this move and have stated from the outset that presidential immunity ⁤should be an absolute bar to ⁣the prosecution of Trump for his ⁤alleged ⁢acts in office that ‍underlie the federal prosecution in D.C.

1. What Is Presidential Immunity?

In essence, President Trump is arguing that ⁤presidents, even after their terms in office are‍ over, are absolutely​ immune from criminal prosecutions arising out of their acts in⁤ office that fall‍ within the “outer perimeter” of their official responsibilities‌ as president, unless they have first been both impeached ​and convicted by the House of Representatives⁢ and⁢ Senate.

He is arguing that all ‌of the acts he is alleged to ⁢have committed fall within this absolute immunity. This⁢ view,​ as the motion ⁤filed Thursday makes clear, ⁣is deeply⁤ rooted in bedrock legal principles, in caselaw, in the Constitution, and in ⁣actual practice dating back centuries.

In ​ Nixon v. Fitzgerald, the Supreme Court ruled that a‌ president has absolute immunity from civil liability for acts within the outer perimeter⁤ of his ‌official responsibilities. In short, you cannot sue a former president personally because his official acts harmed you. This ​is an ⁤unquestioned Supreme Court precedent, based on very serious, core separation ⁤of ⁣powers concerns.

If‌ a president were susceptible to civil suit for ‍his official​ acts, the court held‌ that⁤ this would “raise unique risks to the functioning of government” in light of the “singular importance of the President’s‌ duties.” The purpose of presidential immunity, in the Fitzgerald court’s⁢ view, is to‍ prevent concerns about being sued clouding ⁣the president’s judgment and crippling his‌ ability to act.⁤ Presidents need ‍to be able to discharge their duties to the best of their abilities without having to worry about being hauled into court when their terms expire.

2. The Impeachment Clause

This view is ⁤also rooted in the actual text of the Constitution. The impeachment‌ clause of Article I​ provides⁤ that, although impeachment⁢ proceedings do not themselves carry a punishment beyond removal from office, a party convicted after impeachment, “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

By specifying that a president impeached and convicted could be subject to indictment, etc., the Constitution plainly and clearly implies ⁢that absent impeachment and conviction a president cannot be criminally prosecuted for his official acts. Democrats impeached President⁢ Trump ​twice, and on both occasions⁤ the Senate acquitted him. Absent a conviction at an impeachment trial, presidential immunity applies to all of President ⁢Trump’s acts​ that fall within the ​outer perimeter of his official responsibilities, and for these acts⁣ at least he cannot be⁢ prosecuted.

3. What Is the Scope of Presidential Immunity?

If we accept​ that presidential immunity applies in the criminal context, the‌ key question is whether the⁣ acts that underlie President Trump’s indictment in D.C. fall within ⁢this ‍“outer perimeter” of ⁤his official responsibilities as president. I think the answer is clearly yes.

First, it is very important ‍to note that in the context of assessing ‍immunity, the motive of a⁢ president is irrelevant.⁢ Why ⁢the ​president did something is immaterial; the question is what the president is alleged to ⁢have done and whether those acts were within this very broad outer perimeter of his official responsibilities. And because​ the scope of presidential authority and of ​presidential⁣ responsibilities is so vast, the catchment of presidential immunity⁣ is similarly expansive.

When you actually review the​ alleged acts that underlie the D.C. indictment, my view is that each and every one clearly falls within the outer​ perimeter ⁤of President Trump’s official responsibilities. These acts include:

  1. Making public statements about⁣ the administration of the 2020 federal ⁣election. Courts have consistently held that‌ communicating to the public about matters of ⁣national⁤ concern is well within the scope of official governmental duties. It is tough to ‍see then how‌ making public statements about the administration‌ of a⁢ federal election ‌would not fall within at least‍ the outer perimeter of the president’s⁢ official responsibilities.
  2. Communications with public officials, both state and federal, about the administration ⁢of the 2020 federal election. Instructing his own Department of Justice to do more to enforce ⁣the law as he saw it was clearly within the ⁣ambit of President Trump’s presidential responsibilities, ⁤and appointment of governmental ​officers is a ‌presidential responsibility entrusted to the president ⁣by⁣ the Constitution ​itself. The same is true of⁣ communications with state officials. The president has ‌a constitutional obligation to ensure the integrity of federal elections; communicating with ⁣the state officials responsible for election administration ⁣at various stages therefore easily falls within‍ the outer perimeter of the‍ president’s official responsibilities. It is tough to see how the president urging Congress and⁢ the vice president to take certain legislative acts would not constitute an act within ​his official‍ responsibilities. Trump’s motion even points ​to the interesting historical analogy of President Grant’s actions in the wake of the election of ‍1876, where ​he communicated with Congress directly about electoral count issues and problems with voter fraud in a ⁢number of states.
  3. Taking steps to‌ allow ‌Congress and the vice president to take action on the federal election fraud that he believed ‌occurred. Although the indictment makes ‍much of President Trump’s attempts to corral alternate⁤ slates of electors in key ⁢states, these acts ⁢are, as President Trump’s motion details, best considered ⁢as ancillary and preparatory to President Trump’s efforts ‍to get Congress and the vice president to take⁣ action on what he​ viewed as outcome-determinative federal⁤ election fraud. The courts have long recognized that acts that are performed within a continuum ‍with immune acts are also subject to immunity.

Remember, for the⁢ purposes ‍of ⁤assessing the scope of immunity,⁤ intent and‌ veracity/falsity are irrelevant. Your views ‍on whether President Trump’s views on the election were accurate are⁤ irrelevant. Your views on why President Trump did what he did ⁣are irrelevant. If the acts themselves⁣ were presidential acts,⁢ falling within the outer perimeter⁤ of presidential responsibilities, they cannot form‌ the basis for a criminal prosecution of President Trump, because presidential immunity applies.

As a ​result, since⁣ the entire⁣ indictment in the D.C. case against President Trump is predicated on acts like ⁤these that he is immune ‌from prosecution‍ for, the ‌case should be dismissed.

4. How Likely Is Appeal?

Lastly, one⁤ final note on timing: Any​ denial of this​ motion to dismiss, or any similar motion in‌ Georgia, is likely immediately​ appealable, as is ⁣the case in where ‌congressional legislative immunity is implicated. This means, depending on how long it takes Judge Chutkan to rule, this issue could⁤ be‍ before the D.C. Circuit and potentially the Supreme ​Court before long.

In the meantime, an immunity argument like this⁢ one compels a stay of all proceedings, as would be the case in‍ almost any action where immunity forms a potential basis​ for the avoidance of trial.


How does the president’s duty to ‌ensure ​the‌ integrity and legitimacy‍ of the electoral process intersect ⁢with Congress’ consideration of objections and challenges?

S to consider potential objections or challenges to the certification of Electoral College results. As the motion argues, this is within the president’s duty to ensure the integrity and legitimacy of⁤ the electoral process. Allowing ⁢Congress to consider objections and challenges is an important⁣ aspect of this responsibility, and⁣ therefore falls within the outer perimeter of the president’s official duties. The fact that these steps⁣ were ‌taken in the context of his disagreement with the‌ outcome of the election does not change this analysis.

4. Conclusion

In conclusion, President Trump’s motion to dismiss the case against him in D.C. on the basis of presidential immunity⁤ is a strong legal⁤ argument. The immunity‌ that presidents enjoy, even after leaving office, for acts within ⁣the outer perimeter ⁢of their official responsibilities is well-established and ⁣supported by Supreme Court precedent,⁤ constitutional⁣ language, and historical‌ practice. The alleged ⁤acts in this case clearly fall within⁢ the outer perimeter of President Trump’s official responsibilities as president, and therefore he should be immune from ⁣prosecution for⁢ them. This immunity is important ⁤to preserve the functioning of government and enable⁤ presidents to fulfill their⁢ duties without fear of ‌legal consequences once ⁤their terms expire. As‍ the case proceeds, it will be interesting to see how the courts analyze ‍and interpret the scope of presidential immunity,⁣ and whether they ultimately uphold or reject President​ Trump’s argument.



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