Why Former President Trump’s Presidential Immunity Arguments Should Be Rejected

Civil Rights Policy Brief #217 | By: Rodney A. Maggay | January 12, 2024

Photo taken from: www.ny1.com

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Policy Summary: Presidential immunity in the United States is a legal doctrine that provides a defense for former and current presidents from certain legal claims. While the doctrine is not mentioned in the text of the U.S. Constitution or any federal statute, it has been recognized by United States Supreme Court case law, although in a rather incomplete fashion.

In 1982, the U.S. Supreme Court decided U.S. v. Fitzgerald. This case established that a former President is absolutely immune from a civil action for damages regarding conduct within the “outer perimeter of their duties.” The dissent, however, mentioned that they would not have allowed absolute immunity but immunity only for certain specified acts of the President. In 1997 the court decided Clinton v. Jones. That court ruled that there is no presidential immunity defense in a criminal case against a president for acts that occurred prior to when he took office. These cases establish the immunity doctrine but apply only to certain civil actions and to incidents occurring before the person became president. No court has ever ruled on acts occurring during a presidential term in a state or federal criminal case against a current or former President.

Former President Donald Trump in 2023 was charged in four separate criminal cases. He is also a party in a civil defamation lawsuit filed against him by E. Jean Carroll. The former President has raised the presidential immunity defense in his defamation case, which was ultimately rejected. In the federal election subversion case against him, Trump raised the defense, which was rejected by the trial judge. That case was subsequently appealed to the D.C. Circuit Court of Appeals which held a hearing on the immunity issue on January 9th, 2024. And in the Georgia election subversion case, former President Trump invoked the presidential immunity case in filings made with the court to have the case dismissed. Rulings in the cases and on whether the immunity defense will be allowed have not been issued in either election subversion case so far.

Policy Analysis: What is the defense of presidential immunity and why is it so important in Trump’s criminal cases?

The rationale for the doctrine of presidential immunity is that if a person performing duties in his official capacity, such as a President of the United States, had to consistently deal and respond to a barrage of civil lawsuits then the official might be hesitant in exercising his duties for fear of injuring one individual. The official’s duties are designed for him or her to act in the public interest and the best interests of the community and the defense is designed to permit unfettered official action without fear of individual retribution.

But while that rationale protects a president from a suit for civil damages, the cases against Trump are criminal cases and are for incidents he took while he was currently holding the office of President. What it boils down to is whether a president can and should be held accountable for criminal conduct. Because of his actions surrounding the 2020 presidential election it is clear that Mr. Trump engaged in actions to subvert the results of the national election in Georgia and a number of other states. In the Georgia state election subversion case, Mr. Trump is accused of trying to pressure Georgia officials of manipulating the results of the vote tally in the state to favor him. And in the federal election subversion case, Mr. Trump is accused of inciting an insurrection in order to prevent Congress from certifying the election win for Joe Biden and preventing the peaceful transfer of power. These acts are prohibited by federal and Georgia state law and would have resulted in criminal charges and the potential for imprisonment for any ordinary person engaging in those acts.

Yet Trump’s arguments for why he should be afforded the defense of presidential immunity is dangerous because it threatens to make a president  not accountable to the laws of the United States. In Trump’s federal election case before Judge Tanya Chutkan, the Judge denied Trump’s motion to dismiss the case because she said, “…that position [as President] does not confer a lifelong ‘get out of jail free’ pass” and she is correct. Because if Trump were to succeed in his argument, there would conceivably be no situation where Trump would be held criminally liable for any acts he takes in the future. He would simply be given a free hand to do what he wants and whatever he pleases even if his conduct and actions were prohibited by law. And he would probably be emboldened to do more knowing that there would be no consequences to him personally. This is not what was intended by the presidential immunity defense. No man or woman is above the law and the consequences that go along with violating the law. Former President Trump should not be afforded the presidential immunity defense in order to demonstrate that the laws apply equally to everyone. The courts should keep this in mind when they finally craft their rulings in the Trump criminal cases.  LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• Politico – interactive map tracking former President Trump’s four criminal cases with updates.
• Protect Democracy – non – profit group’s info page on presidential immunity with some history on the issue.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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