“Well, when the President does it, that means it is not illegal.” — Richard Nixon
Trump’s defenses to his criminal charges are emotive and repetitive. “It’s a witch hunt.” “I was allowed to do it.” “The deep state.” “I was not impeached.” “Biden.” However, his most egregious get-out-of-jail-free contention is that the President can commit any crime because he is the President.
Trump’s legal team says the Court must shield ex-presidents from prosecution. Or they would spend their post-presidency crushed by criminal suits brought by political opponents. And, while in office, the chief executive would have to cower under his desk, powerless and in fear of prison for simply doing his job.
To support this narrative, Trump’s lawyers submitted a brief to the Supreme Court chock-a-block with cases and theories. Let us have a look. (I have removed the case references and legal identifiers as this piece is for non-lawyers.)
Trump’s eight-lawyer legal posse with D. John Sauer as the Counsel of Record starts by presenting the matter under consideration.
QUESTION PRESENTED
Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
[Bolding mine]
Right from the get-go, Trump’s team twists the narrative. They assume something not in evidence — that Trump's acts were official. However, as the prosecution has pointed out, the Constitution gives the President no official role in elections. If so, Trump’s claim, “I was just doing my job,” is irrelevant. But let us continue.
After some introductory boilerplate and a Table of Authorities, Trump’s team gets to the introduction.
INTRODUCTION
From 1789 to 2023, no former, or current, President faced criminal charges for his official acts—for good reason. The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.
They lie. Nixon faced criminal charges until President Ford gave him a blanket pardon. That well-meaning man thought he was ending America’s “long national nightmare.” Instead, because he allowed Nixon to skate, Ford opened the door for Trump to try his hand at lawbreaking.
In addition, the “good reason” no other President faced criminal charges is that they generally did not commit criminal acts. Historians can point out if there are examples of forgiven criminality — but it is safe to say that no sitting president propagated an insurrection.
Bill Clinton did face prosecution. But he reached a deal with the independent counsel, Robert W. Ray, on his last day as President to avoid charges of lying by confessing he had lied. And he did not have the chutzpah to pretend that his mendacity was an official act.
They go on to repeat the “official acts” nonsense.
The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.
It is complete bullshit. In the case of criminal charges, an ex-president, like every other citizen, is protected by the 4th, 5th, 6th, 8th, and 14th Amendments, the requirement to get an indictment and a unanimous jury, a federal judge, an appeals court and the Supreme Court — not to mention the power of their political party and that section of the media working as their propaganda agency.
Bearing that in mind, we can dismiss Trump’s ensuing histrionics. The brief continues:
A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.
Where is the fainting couch? This excess is a classic case of “The lady doth protest too much, methinks.” If they were sure they had the law on their side, they would skip the purple prose and get to the point.
Next, they present their argument, which they still base on Trump’s acts being “official.” (I am sorry to be repetitive. But they started it.)
SUMMARY OF ARGUMENT
I. A former President enjoys absolute immunity from criminal prosecution for his official acts.
Next, Trump’s lawyers contradict themselves. Having said the President cannot be prosecuted, they admit he can. But only after Congress has impeached him.
The Impeachment Judgment Clause reflects the Founders’ understanding that only a President “convicted” by the Senate after impeachment could be criminally prosecuted.
Adding: The Constitution authorizes the criminal prosecution of a former President, but it builds in a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such a dramatic action.
Here, they state as fact what is only their convenient opinion. The Constitution’s Impeachment Clause (Article 1 Section 3 Clause 7) reads:
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.
This rubric means that an impeached President can ALSO be criminally tried. Trump's lawyers say this means ONLY an impeached President can be tried. If the founders meant that, why did they not write that?
The brief’s next argument is essentially, “use it or lose it.”
The long history of not prosecuting Presidents for official acts, despite ample motive and opportunity to do so over the years, demonstrates that the newly discovered alleged power to do so does not exist.
Next, the brief again asserts something for which there is no evidence
II. The question of a former President’s criminal immunity presents grave constitutional questions that strike at the heart of the separation of powers.
Accordingly, in addition to the clear provision of Presidential immunity from criminal prosecution based on the Executive Vesting Clause and the separation of powers, the doctrine of immunity dictates that generic criminal laws should not be construed to apply to the President or his official acts.
The Executive Vesting Clause (Article 2 section 1 clause 1) says:
The executive Power shall be vested in a President of the United States of America.
How this means an ex-president cannot be prosecuted is unclear. In addition, while the powers may be separate, the Constitution grants the Legislature the power to impeach the Executive. And the Judiciary keeps constitutional checks on the Legislature and President. So “separate” is not an unbridgeable abyss.
Next, having said that an ex-president has total immunity, the brief admits the possibility he does not.
III. The Court should dismiss the indictment. If it somehow does not, in assessing “to what extent” criminal immunity applies to former Presidents, the Court should be guided by four considerations.
Here are the four considerations. They begin by reiterating the claim that a President is totally immune for official acts — and what constitutes an official act should be very wide. No doubt Trump believes that if a President says it is official — it is official. (A power similar to declassification by thought alone.)
First, consistent with Fitzgerald, the scope of immunity should extend to the “outer perimeter of a President’s official acts,” and its protection should be absolute, not qualified.
Next, they argue for delay. If SCOTUS does not grant immunity to Trump, they should at least send the matter back to a lower court for some more time-wasting.
Second, if the Court determines that immunity exists but requires fact-based application, the Court should follow its standard practice and remand to the lower courts to apply that doctrine in the first instance, including conducting any fact-finding necessary to the determination prior to any further proceedings in the case.
Then they argue that if immunity only exists for an “official’s duties,” then the Court should remember that everything a President does is de facto an official duty. And that the standard for judging something lawless is there is perfect unanimity of opinion (beyond debate) — which is far higher than the criminal standard, beyond a reasonable doubt.
Third, if the Court adopts a form of qualified immunity, which it should not do, the Court should emphasize two fundamental features of that doctrine. First, the breadth of qualified immunity’s protection corresponds to the breadth of an official’s duties—which, in the President’s case, are extraordinarily, and almost completely, broad. Second, qualified immunity requires a “high degree of specificity” in defining unlawful conduct that “applies with obvious clarity” to the situation, rendering the unlawfulness of the challenged conduct “beyond debate.”
Lastly, they carve out what could be called the “Trump exception.” They claim that while a President’s official acts can never be examinable by the courts, the judicial branch is specifically forbidden to examine the President’s behavior if that ”official action” is trying to stay in office illegally. (It makes sense to them.)
Fourth, the Court should reject the D.C. Circuit’s alternative approach of denying a President criminal immunity when his conduct is allegedly motivated by the desire to remain in power unlawfully. This approach contradicts Marbury’s holding that a President’s official acts “can never be examinable by the courts.”
Having stated summations of their positions, the rest of the brief then goes into Trump’s second favorite legal strategy (after delay) — baffle them with bullshit. They flesh out their arguments for 42 pages. For those interested, they start their pasta flinging at page 10 of the brief — Click HERE.
I will not get into the weeds — this is an essay, not a book. But here are their headings to give the reader a flavor.
ARGUMENT
1. A Former President Enjoys Absolute Immunity from Criminal Prosecution for His Official Acts.
- A. The Executive Vesting Clause and Separation of Powers
- B. The Impeachment Judgment Clause Confirms Immunity.
- C. “The Presuppositions of Our Political History.”
- D. Common-Law Immunity Doctrines.
- F. Arguments to the Contrary Are Meritless
- 1. Attempts to Distinguish Marbury.
- 2. The “Presumption of Regularity.”
- 3. Immunity Does Not Place the President “Above the Law.”
II. “Generally Applicable Criminal Laws” Do Not Apply to the President’s Official Acts Absent an Exceptionally Clear Statement.
III. Four Considerations Should Guide the Court’s Assessment, If Necessary, of the Extent to Which Criminal Immunity Exists
- A. Criminal Immunity Should Be Absolute and Extend to the Outer Perimeter of the President’s Official Duties.
- B. The Court Should Remand After Finding Criminal Immunity, If Necessary.
- C. If It Adopts Qualified Immunity, as It Should Not, the Court Should Emphasize That Doctrine’s Fundamental Features.
- D. The Court Should Not Create an Unconstitutional Exception to Immunity That Applies to President Trump Alone.
Note: Any brief still calling the defendant “President Trump” can be dismissed as unserious.
Finally, they get to their ask. Which is “give us what we want — or delay this until we can think of another reason to delay this.”
CONCLUSION
The Court should reverse the D.C. Circuit and order the dismissal of the indictment. If the Court finds further fact-finding necessary, it should remand to the district court to apply the doctrine in the first instance.
The only Court that could maintain the Founders gave a President carte blanche do do whatever he wanted in office, immune from future prosecution, is one where the majority was militantly partisan and where three Justices had been appointed by the defendant.
Which is why there is still doubt as to the outcome.