Louis XIV (perhaps apocryphally) said, “l’état, c’est moi” — “I am the state.” The declaration was echoed by Richard Nixon in 1977 when asked by David Frost why he had authorized burglaries, wiretapping and other illegal actions against anti-war protesters. He responded: “Well, when the president does it, that means that it is not illegal.” Nixon soon walked back the statement, saying that he did not believe a president is “above the law” but must have latitude to adapt “statutory laws to the laws of necessity and the rule of reason.”
Donald Trump has gone beyond both the French king and Nixon in arrogance. In a motion filed in his D.C. criminal case, he claims a broad presidential immunity from criminal prosecution for virtually everything he did while in office to try to overturn the 2020 election. The tenuous legal argument is transparently in furtherance of his core defense strategy of running out the clock until after the November 2024 presidential election. The D.C. claim of presidential immunity is unlikely to win dismissal of the case, but it may succeed in delaying his D.C. trial, now scheduled for March 4, to a date known only in Neverland.
Underscoring Trump’s dilatory approach, almost simultaneously he asked Judge Aileen Cannon in Florida to delay his criminal trial relating to the Mar-a-Lago documents until after the election. He moved to dismiss the New York state criminal case against him, the one involving hush money payments to porn actress Stormy Daniels. He has also indicated he would try to delay the ongoing civil fraud trial in New York while he takes an appeal.
The Supreme Court has never said that a president is immune from criminal acts in office, but only from civil actions for official conduct or activities which are within the “outer perimeter” of his presidential authority.
In that case, the court distinguished between criminal and civil actions, stating that there is a “lesser public interest in actions for civil damages than … in criminal prosecutions” — a distinction Trump’s lawyers in their papers acknowledge on little cat feet. His lawyers argue, however, that, Trump’s actions “to ensure election integrity” are not only within that “outer perimeter” but that they lie “at the heart of his official responsibilities as President,” an astounding proposition.
The president has no role in the administration of elections, which is a function of the states.
When Trump discussed the fake electors scheme with his co-conspirators, made his call pressuring Georgia Secretary of State Brad Raffensperger to “find” the needed 11,780 votes, and pushed Mike Pence to violate the law and tamper with the Electoral College vote, he was not acting to faithfully execute the laws, but to break state and federal laws, as well as the electoral process prescribed by the Constitution. That conduct crossed the line. According to the indictment, this was criminal election interference, not official duty. His conduct is therefore not immune.
Trump’s lawyers also argue that impeachment is the only remedy that can be taken against a president, twisting the text of the Constitution to suggest the chief executive cannot be prosecuted unless articles of impeachment result in a conviction in the Senate. The Constitution provides that where there is a judgment of conviction in cases of impeachment “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The very language presupposes that a president convicted of “high crimes and misdemeanors” would enjoy no immunity from prosecution “according to law.” Neither would an impeached but acquitted president enjoy immunity. If the founders of the country wanted to confer such immunity, they would have said so.
Besides, Trump was acquitted by the Senate because he was not the president at the time of the trial, and GOP Senate Leader Mitch McConnell thought there was no jurisdiction to convict him. McConnell noted the flawed argument that impeachment is the sole remedy for presidential misconduct. In holding Trump responsible for the events of January 6, McConnell noted, “President Trump is still liable for everything he did while in office. He didn’t get away with anything yet. We have a criminal justice system in this country. And former presidents are not immune from being held accountable.”
It is trite law that, for purposes of a motion to dismiss, the court must assume that the allegations in the indictment are true. So the D.C. court must assume that Trump unlawfully conspired to overturn the election. The truth of the allegations will be for the jury, so Trump’s motion should be a long shot. But here’s the rub.
Normally, there is no interlocutory appeal from a trial court’s denial of a motion to dismiss an indictment. Most appellate issues must wait until after a verdict.
The issue of presidential immunity, however, is one that the higher courts may want to take up before Trump goes on trial, although appellate courts have held that “if the appellant’s supposedly legal arguments are ‘dependent upon, and inseparable from, disputed facts,’ appellate jurisdiction is lacking.” Here, there is a mixed question of law and fact, it is for the jury to decide whether the conduct was official or criminal, and any interlocutory appeal should be dismissed.
Trump is essentially arguing that he is above the law — a proposition that the Supreme Court has consistently rejected. His raising this issue puts him on a collision course with the March 4 trial date. If District Judge Tanya Chutkan denies the motion, the D.C. Circuit presumably can summarily dismiss the appeal or put the case on a fast track and get it decided in time. But if Trump petitions the Supreme Court to review the matter, and four justices agree to do so, it is anyone’s guess when the trial might take place — if it ever takes place at all.
Delay is a staple in any trial lawyer’s bag of tricks. As noted by the late Chief Justice Warren Burger, “lawyers are competitive creatures and the adversary system encourages contention and often rewards delay.”
But particularly in the case of Donald Trump, the public is as much entitled to a speedy trial as is the defendant. Assuming that there is nothing to Trump’s claim of presidential immunity, it is up to the court system to move the case promptly to trial.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the acclaimed public television talk show and podcast Conversations with Jim Zirin.