Presidential immunity from prosecution is now a dead argument

In another legal defeat for the former president, the D.C. Court of Appeals rejected Donald Trump’s claim of absolute immunity from prosecution in a blistering 3-0 opinion. The court ruled that the public interest in preserving criminal accountability outweighs the presidential interest in being free from any interference and distraction caused by criminal charges. The ruling means that the criminal prosecution to hold Trump accountable for the allegedly illegal actions he took to remain president after he lost the 2020 presidential election can continue. 

Trump’s plan to try his luck with the Supreme Court is unlikely to yield a different outcome. His absolute immunity claim is unprecedented and rooted in arguments that violate case law, constitutional design and long-standing history.

Both the D.C. District Court and now the Court of Appeals rejected the idea of absolute presidential immunity. The Supreme Court too rejected presidential absolutism, in U.S. v. Nixon: “Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” 

Trump’s actions in question have no relation to the official duties and responsibilities of presidents. Simply put, Trump was not considering the appointment of cabinet officials, developing public policies or negotiating treaties with a foreign state — he was taking steps to preserve his place in the White House through legally questionable means.

The Supreme Court will not accept Trump’s appeal unless there are compelling reasons to do so. Litigation involving a former president may result in a review by the nation’s highest court, but typically the court only accepts cases where there is a conflict of opinion on a constitutional or legal issue between federal courts, or if a lower court has decided an important matter of law against a prior ruling of the Supreme Court. 

The facts and history of the Trump litigation do not align with the conventional justifications for accepting a case. The rulings by both the D.C. District Court and Court of Appeals are the only ones issued in the federal courts on the question of absolute immunity from criminal liability for presidents. Also, future rulings are unlikely, as no other circuit court of appeals has a similar case before it. Simply put, there is no split in the circuits. Moreover, the D.C. Court of Appeals did not break from Supreme Court precedent on the absolute immunity question. As stated, the Nixon decision points to the conclusion rendered by both courts. 

Only in the Court’s 1981 Nixon v. Fitzgerald decision could one possibly claim there is a conflict. However, the facts of that case — and resulting underlying analysis — do not square with the current situation. In Fitzgerald, the Supreme Court employed a balancing test and decided that the civil liability risks to the presidency outweighed the public interests at play: “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

But a key difference in the current situation pertains to civil and criminal liability, as Trump’s indictment raises much more important and vital public interest principles than the civil damages in Fitzgerald. Such a distinction is vitally important and conforms with existing Supreme Court precedent. 

But what if none of the above matters? What if the Trump legal team only wants to delay, buying time so the former president can win the 2024 presidential election and get back in the White House? That might be the legal strategy at play, but it too will not work.

First, if the rationale provided by the D.C. Court of Appeals is sound — and we believe it is — then the Supreme Court will reject any and all claims to absolute protection from criminal liability. Second, even if such a decision is not rendered until after the election, it does not follow that Trump remains immune from criminal prosecution while serving as president. In fact, it is highly unlikely that the Supreme Court would qualify its ruling and hold that absolute immunity does not apply to former presidents but does protect the current White House occupant. Former President Richard Nixon was most certainly incorrect when he said “if the president does it, it’s not illegal.” 

The latest absolute immunity opinion does not render American presidents helpless. Limited presidential-level protections, particularly in the form of executive privilege, are necessary when used judiciously and balanced against other constitutional interests. But Trump’s claim to immunity under the current circumstances should be rejected without hesitation.

Mitchel A. Sollenberger is professor of political science at University of Michigan-Dearborn. Mark J. Rozell is dean of the Schar School of Policy and Government at George Mason University. They are co-authors (with Jeffrey Crouch) of “The Unitary Executive Theory: A Danger to Constitutional Government” (University Press of Kansas, 2020).