After the Senate acquitted Donald Trump of the “high crimes and misdemeanors” alleged in his second impeachment, Mitch McConnell, then the chamber’s majority leader, emphasized that the former president still could be held accountable for his reckless behavior before and during the Capitol riot. “We have a criminal justice system in this country,” the Kentucky Republican said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
McConnell was wrong about that, Trump’s lawyers argue in a brief they filed on Saturday. They are asking the U.S. Court of Appeals for the D.C. Circuit to overrule U.S. District Judge Tanya Chutkan, who this month rejected Trump’s claim that presidential immunity bars Special Counsel Jack Smith from prosecuting him for trying to reverse Joe Biden’s victory in the 2020 election. “President Trump has absolute immunity from prosecution for his official acts as President,” Trump lawyer John Sauer argues. “The indictment alleges only official acts, so it must be dismissed.”
According to Sauer, those “official acts” included Trump’s public claims that the election was rigged, his pressure on state and federal officials to accept and act upon those claims, and his campaign’s recruitment of “alternate electors” to replace Biden’s slates in seven battleground states. Where Smith sees a persistent attack on the democratic process, Sauer sees efforts to protect it—efforts that were consistent with Trump’s job description. Those dueling glosses also figure in the question of whether Trump committed the crimes alleged in the federal indictment or in the Georgia racketeering indictment against him, which covers much of the same territory. But here Sauer is arguing that no jury, federal or state, should ever be allowed to consider such charges.
The appeals court has scheduled oral arguments on that question for January 9. The Supreme Court, which last week passed up an opportunity to intervene prior to the D.C. Circuit’s decision, will have to weigh in eventually.
Trump maintains that a former president has “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he was in office unless he was both impeached by the House and convicted by the Senate for those actions. In other words, Trump claims the process that McConnell presented as an alternative to a Senate conviction is foreclosed without a Senate conviction.
“The Constitution’s text, structure, and history do not support that contention,” Chutkan wrote in her December 1 decision. “No court—or any other branch of government—has ever accepted it. And this court will not so hold.” Whatever limits might apply to prosecution of a sitting president, she said, “former Presidents enjoy no special conditions on their federal criminal liability.”
In arguing that Chutkan got it wrong, Sauer leans heavily on Article I, Section 3, Clause 7 of the U.S. Constitution, which says: “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.”
Under that clause, even a president who already has been convicted by the Senate and removed from office can still be criminally prosecuted for the same underlying conduct. As Sauer reads it, however, the clause also implies that only a president who has been convicted by the Senate can face criminal prosecution. In support of that interpretation, he cites Alexander Hamilton’s explanation of the clause in Federalist No. 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”
Sauer says afterwards implies that a former president is subject to “the ordinary course of law” only when he has first been convicted by the Senate. He also cites Federalist No. 77, where Hamilton said the president is “at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other, and to forfeiture of life and estate by subsequent prosecution in the common course of law.” Again, Sauer argues that subsequent implies this is the only sequence that the Constitution allows.
If Sauer is right about that, you might wonder, why did Gerald Ford, upon taking office after Richard Nixon’s resignation, bother to pardon his predecessor “for all offenses against the United States” he may have committed as president? “Both Ford’s pardon and Nixon’s acceptance arose from the desire to prevent the former President’s potential criminal prosecution,” Chutkan wrote, “and both specifically refer to that possibility—without which the pardon would have been largely unnecessary.”
Sauer says Chutkan “draws exactly the wrong conclusion” from that episode. “President Ford’s issuance of a prophylactic pardon to prevent a potentially bitter, protracted, divisive prosecution of a former President,” he says, “reinforces the political and constitutional tradition against prosecuting Presidents.” In any case, “the allegations against President Nixon included alleged crimes in private conduct…so the pardon provides no counterexample to official-act immunity.”
That distinction seems dubious given the allegations in the proposed articles of impeachment against Nixon, which said he used “the powers of his high office” to subvert investigations of the Watergate break-in and the subsequent cover-up. The articles accused him, for example, of “making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States” and “interfering or endeavouring to interfere with the conduct of investigations” by the FBI and the Justice Department. Those are similar to the “official acts” that Sauer says form the basis of Trump’s indictment.
Conversely, Smith disputes Trump’s argument that all of the conduct alleged in the indictment falls into the category of “official acts.” For example, he told Chutkan, “allegations that the defendant ‘acted purely in his capacity as a candidate for office’ by, among other things, ‘directing his campaign staff’ to further his efforts to overturn the election results do not fall within the outer perimeter of the presidency. That is particularly true with respect to allegations that the defendant conspired with and directed individuals outside the government to facilitate his effort to turn the election in his favor as a candidate.”
More broadly, Smith argues that “no legal principle, case, or historical practice supports the conclusion that a former president is immune from federal criminal prosecution for conduct undertaken during his presidency.” If Trump were right that “criminal prosecution is available only when preceded by House impeachment and Senate conviction,” Smith notes, “it would either completely shield a former president from criminal prosecution for crimes committed while in office but discovered afterwards or require that Congress initiate impeachment proceedings against a former president,” which would “empower Congress to control the core executive act of prosecution through the political impeachment process.”
That requirement also would contradict Trump’s position after his second impeachment, when he said the Senate could not try him once he had left office. McConnell agreed with that position, which is why he held out criminal prosecution as an alternative.
In his Commentaries on the Constitution of the United States, Smith notes, Justice Joseph Story assumed that an impeached official could face criminal prosecution even if he were acquitted by the Senate. The Constitution draws a distinction between a Senate trial and a trial “in the common tribunals of justice,” Story said, to ensure that “a second trial for the same offence could be had, either after an acquittal, or a conviction in the court of impeachments.” If that qualified as double jeopardy, he said, “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.”
In the 1982 case Nixon v. Fitzgerald, which involved a whistleblower who sued Nixon for firing him from his job as a civilian analyst with the U.S. Air Force, the Supreme Court narrowly held that the president “is entitled to absolute immunity from damages liability predicated on his official acts.” Such immunity, Justice Lewis Powell said in the majority opinion, is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.”
That decision, however, did not resolve the question of whether a former president is immune from criminal liability for his official acts. Powell contrasted a “merely private suit for damages based on a President’s official acts” with “the public interest in an ongoing criminal prosecution,” where “the exercise of jurisdiction has been held warranted.” He noted that the Court had “recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”
Chief Justice Warren Burger drew the same distinction in his concurring opinion. “The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts,” he wrote. “The Court does no such thing. The immunity is limited to civil damages claims.”
As Sauer sees it, the fact that federal courts have never had to squarely address the immunity question raised by Trump’s prosecution is telling. “During the 234 years from 1789 to 2023, no current or former President had ever been criminally prosecuted for official acts,” he writes. “The 234-year tradition of not prosecuting Presidents for official acts—despite ample motive and opportunity to do so—provides powerful evidence that the power to do so does not exist.”
Sauer warns that “the indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our Nation for many decades to come and stands likely to shatter the very bedrock of our Republic—the confidence of American citizens in an independent judicial system.” That threat, he says, comes not just from federal cases like this one but also from local prosecutors across the country who might bring charges against a former president for partisan reasons—charges that would be adjudicated by a “possibly hostile judiciary.”
The only way to guard against that danger, Sauer argues, is to give former presidents complete immunity from criminal prosecution based on their “official acts” unless they were convicted and removed from office by the Senate. If they resign before that happens, lose reelection, or choose not to run again, or if their criminal conduct does not come to light until after they leave office, they are in the clear, no matter how egregious their behavior.
“The implications of the defendant’s unbounded immunity theory are startling,” Smith writes. “It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial.”
The four dissenters in Fitzgerald warned that “attaching absolute immunity to the Office of the President, rather than to particular activities that the President might perform, places the President above the law,” reverting to “the old notion that the King can do no wrong.” Not so, the majority responded: The decision was limited to a “private suit for damages.” If the Supreme Court decides that immunity also extends to criminal prosecution, the dissenters’ hyperbole will prove prophetic.
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