• Show Notes

Dear Reader,

It’s always easy, and often correct, to react to Donald Trump’s legal moves with disdain. He and his lawyers have made a habit of submitting court papers that read more like anger management sessions and social media rants and stream-of-consciousness airing-of-grievances than actual legal filings. 

But this one is different: Trump has moved to dismiss Jack Smith’s federal election interference indictment on the basis of presidential immunity. Unlike some of the drivel we’ve seen from Trump’s lawyers over the years, this motion contains merit and nuance. At a minimum, it raises thorny issues that will require courts to break new ground. And, while I wouldn’t quite say it’s more likely than not that Trump wins, he’s got a realistic, material chance of success. If he does prevail here, DOJ’s 2020 election fraud case is toast, and Fani Willis’s likely will be, too. 

I can already hear the outrage: “But nobody’s above the law!” I know. I’m with you. But it’s simply non-responsive to react to reality with indignation. The fact is, the president sometimes is above the law. Who else can invoke executive privilege to try to block subpoenas? Who else can pardon his cronies, and (maybe) himself? Who else can’t be prosecuted by DOJ while in office? 

As we assess Trump’s immunity motion, let’s start with one vital thing we do know, and two others that we don’t.

Known Thing #1: A federal official has absolute civil immunity and cannot be sued for actions taken within the scope of his federal job.

This bit is settled, thanks to Richard Nixon. Long story short: an Air Force analyst named A. Ernest Fitzgerald testified in Congress about wasteful military spending; Nixon had him fired; Fitzgerald sued Nixon for damages; and the Supreme Court threw the case out, creating the modern conception of “absolute immunity” for the president from civil suits. 

If you’re wondering, Well how about when Paula Jones sued Bill Clinton?: Good question. The Supreme Court let that one proceed because, while the lawsuit was filed while Clinton was president, the conduct occurred entirely before he took office. From there, we got depositions, lies under oath, a salacious independent counsel report, a presidential impeachment, and a great television miniseries.

Unknown Thing #1: Does a federal official have absolute immunity against criminal prosecution for actions taken within the scope of his federal job?

You can see the arguments both ways here. DOJ will argue that civil immunity is one thing, but to elevate presidential protection to the criminal level is to invite consequence-free law-breaking by one extraordinarily powerful individual. 

Trump will counter that the Supreme Court’s primary concern in creating civil immunity was that the president, in exercising his executive duties, shouldn’t be hamstrung by fear that he might get sued because of some difficult decision he has to make as president. That worry about impeding the functioning of the Executive Branch would be even more pronounced, the argument goes, if the president had to constantly fret not only about being sued, but about being prosecuted and thrown in prison. 

Take whichever side speaks to you; the Supreme Court has left this make-or-break issue wide open, and we just don’t know how it’ll come out.

Unknown Thing #2: Did Trump’s charged conduct fall within the outer boundaries of his job as president?

Trump’s team argues that everything he did (as alleged in the indictment) was well within his job as president: they say he made public statements about the election and certification, he communicated with DOJ about possible election fraud, he dealt with state officials, the vice president, and Congress about “the exercise of their official duties in the Election-Certification proceedings” (to quote Trump’s motion). In a vacuum, those things sound fine and dandy. Of course, Trump’s lawyers offer a highly sanitized account of what he actually did. He didn’t just have some theoretical chat with Mike Pence about the constitutional scope of his powers; he asked Pence to throw the election his way. 

But even if we take Trump’s actions in the worst light, that might not overcome an immunity defense. Let’s consider the counter-arguments that DOJ will make to Trump’s claim that he was acting within the scope of the presidency:

“But the president has nothing to do with elections.” Not really. True, the states administer elections and certify their results. But it’s not quite right to say the president, and the Executive Branch that he leads, have no role whatsoever. First, the president has a broad constitutional duty to “take Care that the Laws be faithfully executed.” (What’s with the Framers’ use of random capitalization? I guess I can give Laws a pass – you know, Laws being sorta the whole idea – but Care?) That’s a pretty darn broad constitutional imperative, and the president holds the widest-ranging authority of any American public official, by far. The president oversees DOJ (which contains an election integrity branch), the Department of Homeland Security (which lists “Election Security” among its official duties), and the Federal Election Commission – all of which have roles in regulating or securing our elections. Can’t the president order DOJ to investigate potential election fraud, for example? Can’t the president appoint the head of the FEC and set enforcement priorities? Can’t the president deploy FBI assets or the National Guard if, for example, minority groups were being physically prevented from entering polling places? The point isn’t that Trump had any such noble intentions; he didn’t. The point is that it’s simply wrong to proclaim categorically that the president has nothing to do with elections. 

“But Trump committed a crime, and that can’t be part of the president’s job.” Get this: it may not matter. For one thing, this is a circular argument: we’ve indicted you for a crime, therefore you committed a crime, therefore you were outside the scope of your official job, therefore you’re not immune. The problem is that if this argument held, it would automatically defeat any and all immunity claims – but we know the Supreme Court already has recognized at least a civil form of immunity. 

Moreover, the law is (perhaps surprisingly) tolerant of lousy official behavior. An allegation of malicious or corrupt motives does not affect a public official’s immunity and the motive that impelled the official to do that of which the plaintiff complains is wholly immaterial. Know how we know that? That’s actually a quote from the Supreme Court, in a civil case back in 1896. (You didn’t think I’d gone all old-timey syntax on you, did you?) So it’s not about whether the official’s actions were benevolent or evil, wise or foolish, or perhaps even legal or illegal: it’s about whether they fall within the outer boundaries of the official’s gig. Shooting somebody on Fifth Avenue certainly wouldn’t qualify. But making a bunch of calls from the White House to other government officials about the election, even with selfish or evil intentions? Maybe. 

“But Trump was acting as a candidate, not as the president.” Again – prepare to be dismayed – it may not matter. As recently as 2020, the Supreme Court has recognized that it’s difficult to draw a line between the president in his official and personal capacities. Indeed, DOJ itself recently argued in another case that a “first-term President is, in a sense, always a candidate for office.” So again: this one isn’t as clear-cut as first impressions might dictate. 

Trump won’t prevail in front of District Court Judge Tanya Chutkan, in my estimation. Judge Chutkan has made quite clear in her rulings on previous January 6-related cases her view that Trump deserves to be prosecuted. She seems intent on bringing Trump to trial before the election, setting trial for a mega-expedited date in March 2024. She’s not throwing this case out. 

But Trump isn’t playing for Judge Chutkan here. In a sense, her ruling hardly matters; it certainly will be appealed, either way. The Court of Appeals for the DC Circuit will get the next crack at it. And then, lurking above it all, sits the U.S. Supreme Court. Of course the high Court doesn’t have to take any particular case, and they typically grant review to less than 5% of all cases presented to them. But this one is as strong a candidate for review as you’ll ever see. It poses unresolved constitutional questions, as the Court has acknowledged, which go to core issues of executive power and separation of powers. This case is custom made for certiorari.   

I genuinely don’t know what the Court will do if it takes the case, though it’s probably a good sign for Trump if he loses below and then the Court gets involved. According to SCOTUS Blog’s remarkable Stat Pack, the Supreme Court reversed the lower courts in 82% of cases it considered during the most recent term. It stands to reason, really: if the Court is fine with the result below, it can pass and leave it in place. But when the Court does take a case, it’s usually for a purpose. 

If Trump does succeed on his immunity argument in the federal case brought by Jack Smith, then the Fulton County DA’s case is likely finished, too. Sure, the DA will argue that she has charged Trump under state rather than federal law, perhaps with marginally different conduct or angles. But if the Supreme Court rules that Trump can’t be prosecuted for his efforts, while in office, to steal the 2020 election – in several states, including Georgia, as charged by Jack Smith  – then Willis has nowhere to run, and her case bites the dust too. 

Don’t toss this immunity motion into the same pile of kindling where so many other Trump briefs have rightly landed. This one’s for real. 

Stay Informed,


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