Is the Trump indictment constitutionally legitimate?

The so-called “January 6” indictment against former President Trump has finally dropped, and pundits on all sides have been voraciously analyzing the charges and the underlying conduct that President Trump allegedly engaged in, which the Department of Justice says amounts, essentially, to conspiracy to impede an election and obstruction of the right to vote.  

But they’re all getting ahead of themselves. 

There are many ways to attack the validity of the charges and potential defenses, both factual and legal, that Trump will doubtlessly invoke in defending against the most recent indictment. But any legal review of this case would be remiss to overlook the significant first question of jurisdiction. 

Put simply: If there is no jurisdiction, there’s no case. The question of jurisdiction is a question of the authority of the court in which the case is brought to even entertain it. Importantly, the jurisdictional analysis is irrespective of the criminal culpability of the defendant.  

The question of criminal jurisdiction in a federal court for a case involving acts of a then-sitting president is legally a question of first impression. It has long been thought that the president enjoys immunity for his acts while in office — at least for those acts connected with his official duties. The DOJ has historically agreed with this and has repeatedly endorsed the position that they cannot indict a sitting president.  

The Constitution, though, seems to go much further.  As a remedy for the commission of “high crimes and misdemeanors,” by a president, the Constitution calls for impeachment. The remedy of impeachment is the only one delineated in the Constitution. The indictment in this case, of course, follows a failed impeachment for the same acts.  

The argument against this is that the president has only “qualified immunity,” meaning that his immunity from prosecution is connected only to acts that are in furtherance of his official duties. There’s a long history in American politics of drawing this line in cases involving the prosecution of other politicians, including state governors.  

But the American president is different. The president is an entire branch of government embodied in one individual. For example, Article II of the Constitution gives the president unilateral authority over foreign relations. This task is considered an official function of the executive. What the president says to allies and adversaries of the United States is the official position of the country. Article II, Section 3 of the Constitution says the president also has the duty “to take care that the laws be faithfully executed.” It’s hard to imagine a person with this kind of broad power ever not being “on the job.” 

In the eyes of the law, there are very limited circumstances where the president is considered to be acting outside of his official function. The Supreme Court has allowed, for example, “prosecutorial process” on the president to require compliance with subpoenas in criminal cases, in furtherance of a defendant’s right to a fair trial. But turning over documents that someone else might need in their own trial is a lot different than facing prosecution for acts committed during the presidency.

In the present case, this is precisely the issue that has arisen. In order for a prosecution of this sort to even arguably move past the jurisdictional bar, the government would need to establish — maybe even beyond a reasonable doubt — that the acts in the indictment fall outside the scope of the president’s official duties. That will be tough for prosecutors. 

The executive has a direct interest in and obligation to ensure fairness in the outcome of elections. For example, an executive who believes an election is being mishandled by public officials certainly has the authority to comment on such and to intervene as needed — “as needed” being the operative phrase. In addition to his obligations as the executive, the president also enjoys a First Amendment right to speak about concerns with election legalities as he sees fit.  

We also have to remember that there is some possibly exculpatory evidence here that tends to suggest Trump was not trying to “steal” an election at all but was merely exercising the power of his office to inquire into the legalities of it: Without incident, Trump left office on Jan. 20, 2021. The National Guard didn’t remove him. There was no wrestling match over the nuclear suitcase.  

There is, of course, a possibility that a president could engage in actual coup-like efforts, which would present a stronger case that they were acting “outside the scope of the office,” and therefore amenable to prosecution. But where a president utilizes official functions of Congress and the courts to rectify irregularities (as he sees it) in the elections, this likely falls squarely within his power in the tricameral system.  

The president is not above the law. But the law applies differently to different people at different times. For the president, high crimes, misdemeanors and yes, of course, bribery, don’t call for traditional prosecution. Instead, they call for prosecution by impeachment.  

Is it unfair that a president isn’t exposed to jail time like others who commit equivalent crimes? It is not. The president is also exposed to punishments that the ordinary person would not be, including the ultimate humiliation of being the first president in history to be convicted by impeachment and removed from office.  

There are also more complex, nuanced and national security-based reasons why we do not need to be threatening former presidents with jail time. One needs only play this out for a moment to see the obvious risk to our nation’s security —  If Donald Trump isn’t actually a patriot, he would be on the next jet to whatever foreign adversary pays him the most and provides him the most asylum. It is, no doubt, a slippery political slope.  

It is not inconsistent to condemn the behavior of Trump while also taking a strong position that the federal courts have no jurisdiction to prosecute him — or any president — for such. This position is one about the sanctity of our system of justice, not merely a factual defense of Donald Trump himself. 

The legal analysis of every fact and detail is sure to persist for months to come, but perhaps the only question we need to be asking is whether this prosecution is even constitutionally permissible in the first place.

Katie Cherkasky (@CherkaskyKatie) and Andrew Cherkasky (@CherkaskyLaw) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm, Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues.