Trump Doesn't Have Forever Immunity

Expect the Supreme Court to Reject his Claim to it

Donald Trump, former president and current criminal defendant, seems to believe that saying something like, “I used to be the commander in chief, so I have immunity.”  will earn him a  Get-Out-of-Jail-Free card. The odds right now seem to be against him.

As applied historically, presidential immunity prevents the prosecution of the chief executive for as long as he or she is in office. This rule is based on the reasonable assumption that a president may not be accused of breaking the law while conducting official business. Although subject to debate, “official business” has been interpreted broadly. I think there’s some justification for limited immunity, if only because it means the executive branch could continue to function for the American people no matter the controversy,

In Trump’s case, the accused wants immunity after his term of office, for political acts clearly outside his official duties.

The best historical example of a criminally liable president involved Richard Nixon, who used campaign funds to pay the burglars who broke into the offices of the Democratic National Committee. (The offices were in the Watergate building. Thus the scandal was known as, simply, “Watergate.”)  In addition to his engagement with the burglars, Nixon’s other possible crimes included interfering with a federal investigation, suborning perjury, and altering or destroying evidence. Nixon’s acts had nothing to do with his duties as president. Indeed, it was purely political behavior, intended to keep him in power.

House and Senate investigations and prosecution of some of the scandal’s players made Watergate a searing episode that traumatized the nation. Humiliated and powerless, Nixon resigned. Considering the trauma of then prosecuting the former president, his successor Gerald Ford pardoned him.  In Ford’s proclamation, he stressed the long period of social and political upheaval that would accompany a trial against Nixon. He said it would be too damaging to the “tranquility” of the country. He also indicated that in resigning from office, Nixon had already suffered an “unprecedented” punishment

Ford would not have given Nixon what he termed an “absolute pardon” if he didn’t suspect a former president could indeed be prosecuted for actions outside official duties. Certainly, this was a widely held opinion.

Now let’s consider Trump’s situation. In a federal case being tried in Washington, he faces four felony charges linked to his post-election effort to overturn the result and his call for a massive protest at the Capitol aimed at stopping Congresses’ certification of Joe Biden’s election win.  Trump may say he didn’t mean for things to turn violent, as they did, but any reasonable person could conclude that he purposely whipped the crowd into the frenzy that led to them seizing control of the Capitol and delaying, if not blocking, the certification of the election results.

Currently, the law covering the charges against Trump is unsettled. With this in mind, prosecutor Jack Smith asked the Supreme Court to take up Trump’s claim to immunity right away. The court declined, which means an appellate court will take up the matter on January 9.  No matter what happens there, the case is sure to go to the high court soon after.

As it acts on Trump’s claim, the Supreme Court could set the boundaries of immunity once and for all. This prospect has left political partisans, legal scholars, journalists, and everyday citizens to consider and predict the possible outcome.  Many look at the 6 to 3 conservative majority on the court, (including three justices appointed by Trump) and expect the former president will prevail.

I do not.

The court conservatives strike me as genuinely concerned about government overreach. There is no more glaring example of this problem than a claim to immunity that covers the overtly political acts Trump committed. Add the more liberal judges and we could see an 8 to 1, or possibly a unanimous decision against the notion that no matter the crime, a president is above the law even after leaving office.

I expect the Supreme Court will reject Trump’s claim and define, more definitively, the limits of immunity. And our system of checks and balances, which is designed to empower all three branches of government, would be strengthened.

Seems like justice to me.