Last October Donald Trump tried to get the charges against him in the election interference case dropped on the grounds that a former president enjoys “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility.” U.S. District Judge Tanya Chutkan ruled against him early this year, and the Court of Appeals for the District of Columbia upheld her ruling.
Judge Chutkan and the appellate judges found nothing in the Constitution or federal law that grants presidents immunity from criminal prosecution. What democratic society would forbid the prosecution of a president who did what Trump and his associates are accused of doing—trying to overturn the results of an election by illegal means, such as recruiting fraudulent electors in seven states? The answer would seem to be a no-brainer.
Trump’s attorneys claim that only if Congress has already removed a president from office by impeachment—something it has never done—can he be criminally prosecuted. But if a president is otherwise immune from prosecution, what is to stop him from undermining the impeachment process itself, such as by ordering his Attorney General to arrest Senators of the opposing party on bogus charges to keep them from voting for conviction?
The Supreme Court could have simply allowed the lower-court ruling to stand, so that Trump’s trial could proceed. Instead, they delayed their ruling and initiated a lengthy debate over whether presidents should enjoy immunity for “official” as opposed to “private” acts. This distinction has little relevance to the case at hand, since the president has no official role in certifying state election results. Even the vice president, who is responsible for counting the Electoral College votes certified by the states, has no authority to reject any of them. Only Congress has that authority, not the executive branch. When the lawyer representing the Justice Department tried to address the facts of the case the court is supposed to be deciding, Justice Alito said that he would rather discuss more abstract matters.
After over two hundred years of operating without a presidential immunity doctrine, the conservative justices on the Court seem to feel that we now need one. Formulating it will no doubt take months. The Court may ask the lower courts to devote valuable time trying to distinguish official and private acts, whether that helps resolve the real question of Trump’s criminal responsibility or not. In the end, the courts will probably decide that Trump does not qualify for whatever limited immunity the justices think up, since he was operating so far beyond his proper role in the election process. But by dragging the process out beyond the November election, the justices will have given him de facto temporary immunity. Then if he is reelected, he can have his Justice Department make the whole case go away.
If so, will the Supreme Court have served justice, or obstructed it? Will it be protecting the country against the future abuse of power, or just making it easier to get away with?
Beneath the Surface 