Go ahead and laugh off Donald Trump’s immunity argument. He’ll probably lose, eventually, and you’ll end up being right. But it’s not as simple as gravely intoning that No Man is Above the Law, dropping the mic, and asking what we’re even doing here in the first place. There’s more to the immunity question than that, and Trump’s argument, though unlikely to prevail, isn’t nearly as ridiculous as the glibly dismissive, strawman takedowns would have you believe.
Let’s start off with what we do and don’t know. We do know that civil immunity for federal officials is well-established and fairly uncontroversial. This doctrine goes back to a 1982 Supreme Court case called Nixon v. Fitzgerald – Nixon as in Richard and Fitzgerald as in some guy you never heard of who was a federal employee, got fired, and then sued for damages. The Supreme Court held that federal officials, from the president on down, can’t be held civilly liable for actions taken within the scope of their jobs. Hiring and firing federal personnel falls squarely within the president’s official duties, the Court found, so Nixon was clear and Fitzgerald was out of luck.
But we don’t know the answers to two key questions: (1) Is there a criminal counterpart to civil immunity, and (2) If so, what are the precise parameters? These issues have come up from time to time over the past few decades, but the Court has dutifully punted. Now the justices have taken up Trump’s argument in Jack Smith’s 2020 election subversion case, which will be argued next week, and they’ve got to address criminal immunity head-on.
A reasonable person might wonder: what’s the purpose of immunity, anyway? Why should we give federal officials a free pass? Immunity may have that effect but it’s not intended as some type of insider’s fringe benefit. The legitimate policy reason, as articulated by the Supreme Court in the Nixon case (and many times since), is that public officials make difficult decisions every day that impact people’s health, finances, and lives. We don’t want those policymakers hamstrung or influenced by worries that they might be sued (or, perhaps, indicted) for those decisions.
The paramount concern for the presidency itself, Trump’s advocates surely will argue next week, is that an overzealous prosecutor might choose to criminalize official decisionmaking. What if, for example, some politically ambitious prosecutor in Arizona indicted Joe Biden for manslaughter because his border policies allowed people to enter the country illegally, and one migrant committed murder? Think this is ridiculous? It is. But it’s also not inconceivable. Witness one longtime former prosecutor who argued in a national news outlet that Trump should be indicted for manslaughter for his mishandling of Covid. It could happen, if the wrong prosecutor takes the reins.
Indeed, immunity has its valid purposes. But it needs to fire its public relations agent, immediately. As a legal doctrine, immunity’s got a bad rap, thanks to common but oversimplified (and misleading) terms like “blanket immunity” and “absolute immunity.” Those phrases suggest that a president can never be prosecuted for anything he does from the moment he puts his hand on the bible at noon on January 20 until he departs office four years later. It’s exceedingly easy to roll our eyes at such a claim – of course, a president can’t shoot somebody on Fifth Avenue and get away with it – but it’s also not what Trump actually argues in the case heading to the Supreme Court. (At least, it’s not anymore; he included this preposterously overbroad claim in his earlier briefings but has since dropped it, wisely.)
Trump makes two arguments in his Supreme Court brief. One is stupid as hell, but the other isn’t half bad. The lousy one is Trump’s claim that a president can be indicted only if he has first been impeached by the House and convicted by the Senate. That construct has no basis in the Constitution, case law, or common sense. Impeachment and indictment are separate and unrelated processes, and there’s nothing in our laws to indicate that the latter depends on the former. Moreover, this claim leads to absurd outcomes; this is how Trump’s lawyers backed themselves into the infamous answer that, yes, a president can order Seal Team Six to assassinate a political opponent and get away with it (unless he has first been impeached and removed from office).
Trump’s better argument is that a federal official is entitled to immunity from prosecution, but only for acts taken within the scope of the job. This one’s got support in prior Supreme Court rulings – it’s the same framework the Court adopted in the civil context in Nixon – and it leads to reasonable real-world outcomes. When confronted with the Seal Team Six hypothetical, Trump’s team should have responded that no, a president would not be criminally immune, because ordering a hit on a political opponent is plainly outside the scope of the presidency.
The problem for Trump here, as ever, is the facts. It takes Simone Biles-level gymnastics to argue that Trump’s actions after the 2020 election were just part of the president’s workaday job of ensuring fair elections, rather than an effort to steal the thing for himself. So Trump’s lawyers might ultimately win on the law (if the Supreme Court rules that a president can be criminally immune, within the scope of the job) but then lose on the facts (if the Court finds that Trump acted outside that scope).
Here’s where district court Judge Tanya Chutkan dropped the ball. The Judge, who has shown herself to be a sharp jurist with a masterful grasp of the law, wrote a blistering 48-page opinion dismantling the claim that Trump (or any president) is categorically immune for all conduct during the presidential term. But Judge Chutkan failed, or refused, to do the next part (which also happened to be the hard part): she didn’t even address Trump’s claim that he’s entitled to a limited form of immunity that protects a president only for official acts within the scope of the job. It would’ve been easy for the Judge to consider and dismiss this claim. Yet she inexplicably skipped it.
Indeed, the Court of Appeals tried to pick up the slack for Judge Chutkan when it issued its ruling two months later, as they found that even if some limited form of criminal immunity exists, Trump was outside the scope of the job. The problem, however, is that the Court of Appeals is not a factfinder. That’s up to the trial-level district court.
Now the door remains open for an outcome that Smith surely dreads: the Supreme Court might remand the matter back down to Judge Chutkan so she can hold a hearing to determine whether Trump acted within or outside the presidency. We know she’ll rule against Trump, but it’ll take precious time, and then Trump can re-start the appeals process afterwards. Wash, rinse, repeat.
If the Court does send the case back down, then Smith’s chances of trying it before the 2024 election slip from unlikely to nil. In that deceptively likely scenario, Trump will – once again, somehow – manage to win by losing,
This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com.
