Yves here. Press reported depicted the tone of the reaction from the bench in the three-judge appeals court hearing yesterday on Trump’s immunity argument with respect to insurrection charges to be skeptical. Even if this reading proves correct, Trump still could try to appeal. The niceties of Federal court appeals are over my pay grade, but I believe his only option if he loses would be the Supreme Court. The Supreme Court hears very few cases and the odds of Trump getting an audience if he loses would seem to depend very much on the grounds the appeals court used for finding against him. Note those could be purely procedural, such as whether the court has the authority to decide the case.
It still sees useful to consider a contrary view, if nothing else as an exercise in legal reasoning.
By Ofer Raban, Professor of Constitutional Law, University of Oregon. Originally published at The Conversation
Former President Donald Trump’s claims of immunity from criminal prosecution will be argued before the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 9, 2024 – on an interlocutory appeal from his trial for election interference. His arguments have been rejected by a district court judge, and the Supreme Court has declined to weigh in – for now.
Commentators have described his immunity arguments as “frivolous” and “absurd.” But such accounts underestimate the arguments’ weight and at times misconstrue them.
A Related Absolute Immunity Already Exists
Trump claims he is immune from federal charges on seeking to overturn the 2020 elections.
His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity. Trump’s lawyers are not claiming that he couldn’t be prosecuted for, say, shooting a pedestrian on 5th Avenue. They are saying he can’t be prosecuted for so-called “official acts.”
A related immunity has been recognized in the past.
In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions. The principal rationale for this immunity was to allow the president “maximum ability to deal fearlessly and impartially with the duties of his office.” The case described the president as “the officeholder [who] must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system,” and held that the Constitution ensured he was not “unduly cautious in the discharge of his official duties.” Presidents should not take official actions with the fear of civil liability hanging over their heads.
The question remained whether a president could be criminally charged for his official actions.
Trump claims he cannot. He argues that just as the Constitution protects presidents from civil lawsuits, it also protects them from criminal charges – and for an analogous reason: preserving the president’s ability to make official decisions free from the fear of criminal prosecution.
The brief of special counsel Jack Smith responded that it is actually good if presidents are worried about possible criminal liability. Moreover, while immunity to civil liability makes sense, because civil lawsuits can be filed by practically everyone and for myriads of petty reasons, criminal charges usually relate to weightier concerns, and their filings involve various checks and balances.
Nevertheless, it is conceivable that courts would recognize presidential criminal immunity for official acts. If they do, the question would become how to define “official acts,” and whether the actions forming the basis for Trump’s charges, which include many interactions with state and federal officials, qualify under that definition. It seems reasonable to believe that many of them do not and are better described as the acts of a candidate seeking reelection. But some of these acts might qualify.
The Complication from the Impeachment Clauses
Yet, the argument for absolute criminal immunity faced a preliminary hurdle: Article 1, Section 3, of the U.S. Constitution states that while “Judgment in Cases of Impeachment shall not extend further than to removal from Office … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, the Constitution explicitly contemplates the criminal prosecution of a president.
As a brief by the special counsel put it, “the Impeachment Judgment Clause entirely undermines the defendant’s claimthat a former president’s immunity from criminal prosecution should be ‘absolute’ … because a former president who has been impeached and convicted will be liable to criminal prosecution.”
Trump’s response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only 57 senators voted to convict him, short of the 67 needed – he was not liable for criminal prosecution.
Trump’s response became the subject of much disparagement. The New York Times called it an “even more audacious argument” than his claim of absolute immunity. But some of that criticism derives from an uncharitable interpretation of Trump’s claims.
Some critics construed the claim to mean that all officials who are subject to impeachment proceedings – which include “The President, Vice President and all Civil Officers of the United States” – could not face criminal charges for official acts unless they were first impeached and convicted of them.
A group of former government officials and constitutional lawyers wrote in a legal brief that Trump’s argument “would permit countless officials to evade criminal liability.” They went on to say, “Such an outcome would … contradict decades of practice in which the Executive Branch has prosecuted, and the Judicial Branch has convicted, civil officers for crimes committed while in office – regardless of whether they were first convicted in an impeachment trial.” The special counsel made similar objections.
Indeed, impeachment proceedings are very rare, and most eligible offenders never face an impeachment. Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office.
But these strike me as straw-man arguments. Trump’s claim that a president must be impeached and convicted before he can be criminally liable for official acts is premised on the background absolute immunity Trump has claimed for the presidency. To quote from Trump’s brief before the district court: “President Trump was acquitted … after trial in the Senate, and he thus remains immune from prosecution.”
The key word is “remains” because, in Trump’s argument, the impeachment clause provides an exception to the alleged background presidential immunity: Presidents are criminally immune for their official actions, unless they are impeached and convicted for them. In other words, nothing in Trump’s argument prevents the criminal indictment of civil officers who have not been impeached at all, because they do not enjoy absolute criminal immunity to begin with.
Does Acquittal in an Impeachment Proceeding Create or Preserve Criminal Immunity?
In his late briefs, Trump adds a second line of defense: He claims that his impeachment acquittal independently forestalls his criminal trial because of the ban on “double jeopardy”. That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not. The claim would work only if Trump’s impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel.
But the claim, in any case, is weak and at odds with some other statements Trump’s briefs make. Indeed, since impeachment proceedings are not limited to official acts, accepting Trump’s double jeopardy argument would mean that a president could also become immune for unofficial criminal conduct – such as shooting a pedestrian on 5th Avenue – if he were impeached for that act but acquitted.
That argument proves too much, and would also be at odds with then-President Bill Clinton’s agreement to a five-year suspension of his Arkansas law license in a settlement aimed at preventing his subsequent criminal prosecution for perjury – even though he was acquitted in the impeachment proceeding for that unofficial act.
The stronger version of Trump’s impeachment clauses argument presumes the president’s absolute immunity for official acts. Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not. That is why Trump’s brief states, “A former President is subject to criminal process for his unofficial conduct; and he is subject to criminal prosecution for official acts for which he has been impeached and convicted.” Against a background of absolute immunity, Trump’s impeachment clauses argument is not unreasonable.
It all sounds a bit complicated, but the ensuing conclusion is simple: The impeachment clauses debate is a sideshow. The principal action in this appeal is whether presidents have absolute criminal immunity for official acts.
In our present political culture, Trump’s arguments for criminal immunity – and his corollary take on the impeachment clauses – may be seen by some judges and justices as stronger than some critics anticipate.
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I still don’t see how you prosecute Trump for this, when there weren’t any consequences for the Brooks Brothers riot back in 2000, for which there is plenty of evidence of orchestration by Republican operatives(they were the participants!), and allowed for the awful Bush v Gore decision that installed W as president so he could later set the world on fire through a series of illegal invasions.
Perhaps Trump’s big mistake is he didn’t tell his supporters to put on nice suits before asking them to peacefully march to the Capitol.
Nah, I think the difference is that too much of the establishment were involved with the rioters the first time and while the establishment were setting the rioters up the second time.
And unlike the hapless Democrats in the first, they were joined by the chess players in 2020 so there was more long term thinking. We may be on plan E or F now, but they have been putting pieces in play ever since Hillary ran her bus into the wall and crashed into the landfill. Mind you it helps when you own all the referees.
I have trouble with buying the line that because he wasn’t impeached and convicted that he is then immune. By that logic all a president has to do is keep his crimes a secret long enough to finish his term. This would mean that even if the statue of limitations on said crimes had not passed when the secret crime is revealed then the FORMER president is still immune, but a former president is still a US citizen which would mean he’s getting special treatment which would seem to violate the 14th Amendments equal protection clause given that a FORMER president is no longer a sitting president and just a normal citizen, all be it a distinguished one.
The way I was taught to read the impeachment section of the constitution was that it was meant to be a mechanism to remove a said official from office so that they could be tried without disrupting the nations business by having a sitting official being distracted from doing the nations business while being tried in court; that’s why it specifically says that an impeachment is not double jeopardy. Once you’re out of office there is no need to impeach the official to proceed with a trial.
Continuing the question asked yesterday, couldn’t a President evade consequence by having “Seal team 6” kill any Senator who would vote for impeachment?
That is why the founders did not want a standing military. As seizing power militarily (your posit) is extra-constitutional, the constitution is irrelevant.
One day (hopefully after my lifetime) a military coup is likely in the US (exceptionalism is a disease) as it has been in most countries where the economy and social cohesion collapse. Its not as if this has not happened in many many countries in history, and in particular in empires.
IANAL.
As I understand it, impeachment conviction has consequences after the person leaves office, such as disqualification from holding future office(s), loss of benefits (stipends, secret service protection, etc.) that go beyond removing the offender from office.
Fumbling the 2021 Trump impeachment was a big mistake.
What Trump was doing. in the insurrection were not official acts.
Acquittal by the Senate is a political act, and does not preclude prosecution.
I just don’t understand how it was an insurrection.
Until G W Bush (to take just one example) is prosecuted for war crimes including self-confessed torture and St Barack Obama prosecuted for failure to investigate those war crimes per international law, I’d reject any prosecution of Trump on lesser (sometimes trivial) crimes simply as a matter of principle.
Nailed it. This is clear persecution of an individual and the people is paying attention to this. There will be consequences.
Great point: Bush Jr., Cheney (and the late Henry K.) and the gang are lauded as great men by BOTH parties. Obama’s AG looked into the camera and told us that the perps of the largest financial crimes in history (prof. W.K. Black) were not going to be investigated. The TBTF banksters are above the law. The ugly face of oligarchy was laid bare, but most denied it was there.
Democracy and the rule of law eh? The cruel joke is on us.
Dang, what a shame. I’d hate to see every living President and Vice President locked up for their crimes. Doing it to one of them would set such a poor example
Trump might be the least criminal President of recent memory but the bar is underground
to understand what happened under the bush and obama administrations, you must go back to the roots of this mess.
obama could not prosecute bush for torture, bill clinton made it legal.
bill clinton was the god father of american torturers, thats why bush and cheney go free
https://listverse.com/2014/02/05/10-reasons-bill-clinton-was-secretly-a-terrible-president/
“Extraordinary rendition” is when shady government operatives stuff a bag over your head and fly you off to some foreign country where they can legally torture you. It sounds like something Alex Jones might dream up in a paranoid frenzy, but it’s a well-documented phenomenon under both Bush, Jr. and Obama—and Bill Clinton was the guy who started it all.
Clinton and Gore signed off on the first rendition back in the ’90s, despite being aware that it breached international law. Until recently, rendered people frequently wound up in the prison cells of places like Mubarak’s Egypt or Gaddafi’s Libya, where they were tortured with electric shocks, rape, beatings, and even crucifixion. It can sometimes go hideously wrong: In 2003, the CIA snatched a terrorist off the streets and beat, tortured, and sodomized him, only to discover they’d accidentally grabbed the wrong man. The victim just happened to share a name with a wanted criminal. His suffering came care of the Clinton/Gore dream team.”
to understand why bush thought he had the legal grounds to invade iraq, is because this was the roots of his understanding,
https://theintercept.com/empire-politician/biden-iraq-liberation-act/
“In January 1998, the neoconservative Project for the New American Century sent a letter to President Bill Clinton calling on him to overthrow the Iraqi government and making that goal an official “aim of American foreign policy.”
The letter — signed by leading Washington hawks such as Donald Rumsfeld, Paul Wolfowitz, Bill Kristol, John Bolton, and Elliott Abrams — charged that U.S. policy was being “crippled by a misguided insistence on unanimity in the UN Security Council.”
Less than a year later, that letter would form the basis for the Iraq Liberation Act, which codified changing the Iraqi regime as a goal of U.S. foreign policy and helped lay the groundwork for the eventual invasion. It also authorized increased support for Iraqi exiles, some of whom worked with the CIA.
Joe Biden voted in favor of the act, which was signed into law by Clinton in October 1998. In touting his support for the law, Biden said, “So it seems to me that we have a big problem. Saddam is the problem. Saddam is in place. Saddam is not going anywhere unless we do something relatively drastic. It is clear our allies are not prepared to do anything drastic.”
Wow — thank you for that history lesson. I’d say it shocked me, but nothing about US politicians shocks me any more. Bill Clinton was so corrupt and evil in so many ways — “500,000 dead kids… we think it was worth it” (his SofS Albright, infamously) — and current POTUS Biden was there all along, enabling every single war and helping to create the PATRIOT (sic) Act.
I remember when the Dems were in favour of civil liberties, limiting FBI and CIA powers, and protesting wars. Now they are in many ways literally a fascist party, colluding with corporations (Big Tech, Big Pharma, etc) corruptly to enrich themselves whilst imprisoning dissenters and shutting down free speech.
NB I am not saying the Republicans are any better.
Throw them all in jail!
Who were the presidents between Lincoln and Wilson? Exactly. That’s my preference.
what are you even trying to get at here? that the presidents in that period were unmemorable?
Ulysses Grant and Theodore Roosevelt are not obscure historical figures.
That it would be good if they were unmemorable? Leaving aside the bad example, those putatively unmemorable presidents oversaw the robber baron era and peak US inequality, the roll back of reconstruction and high tide of Confederate revanchism, the final genocide of the native populations west of the Mississippi, the strangulation of independence in Latin America and the Pacific by the nascent US empire, and so on. It was an aggressively terrible time in US history.
Turley has said this is why Smith is conjuring up his own off the wall theory of the case–that it’s Trump’s falsification of his beliefs that is the crime. Trump has already been tried for the “insurrection” and not convicted. In fact nobody has been convicted of insurrection itself because then that would have to be proven and as we the commonsensical know there was not insurrection but instead a riot.
The defenders of Smith are merely twisting the law to their own purposes just like the defenders of the 14th amendment objections. They want a government by fine print. Maybe we will all have to sign a EULA before voting.
we have entered this vicious cycle now that the more you prosecute the man the more the people will vote for him. Its really becoming a witch hunt…sad!
Yup, as I said above. It’s persecution, and there will be consequences. The more they do it the more people will rally behind him.
It has always been clear to me, after attending law school not long after Watergate, that under the U.S. Constitution a President must be impeached by the Senate before s/he may be prosecuted for a crime committed in office. A President is immune from prosecution unless impeached. As we saw in Trump’s second impeachment trial, the impeachment may occur after s/he has left office.
The shambolic, half-baked, and politicized manner in which the House Democrats conducted Trump’s two impeachment trials was a disaster. The record was never properly developed through the litigation of subpoenas in the first case, and a mere 47 Senators voted to impeach. This train-wreck paved the way for a sufficient number of Senators to ignore the stronger second case, even though a solid majority of 57 Senators supported impeachment after Trump’s open and public attempt at an insurrection to prevent certification on January 6. Stupid Democrats.
In 2016 fully 40 percent of eligible voters stayed away from the polls — down from the 49 percent who refused to participate in 1996. In 2020 the number of abstentions was reduced to a mere 33.3 percent of eligible voters. For 2024 I predict a similar turnout to 1996 — or worse. It is not apathy. The voters are saying “No” to both parties and their criminal candidates.
A comment I left on Joyce Vance White’s substack:
“One almost feels a bit sorry for Sauer. Almost. Listening to him speak, I thought “geez, this guy is wound up way tight.” Afterwards, others in the press pointed out that it was a REALLY bad idea to let his client sit in on the hearing. Because, for Trump, there is ALWAYS just an audience of one: HIM. Perhaps, like he’s proposing in the New York fraud case close-out, Trump would have liked to have made the appellate argument himself. “Judges, you’re FIRED!” I always call him “Nielsen Mandela.” BTW, w/ respect to Trump’s second impeachment “acquittal,” George Conway points out that 31 of the 43 Republicans voting not to convict did so on the grounds that they likely had no jurisdiction over a now-former president (how convenient). Had effectively nothing to do with the evidentiary merits of the impeachment case.“
Every day for years and years, DT gets MassMedia coverage. The oligarchy LOVE him, he is polarizing and generates ratings and ad revenues. He also helps to perpetuate the illusion of democratic choice and provides a great distraction for the plebs.
US politics has become a Freak Show (more than ever before), I still can’t get over how two mendacious, geriatric, cognitively challenged, amoral freaks are shoved in our faces for years and that is supposed to be our “democratic” choice? I thought the Twilight Zone episode would be over by now, but that is too much to ask.
IMO, the fact that so many people take JB, DT etc. seriously is surreal, and indicative of a declining, collapsing society. No matter what happens to DT, or JB there will be no genuine democratic choice and the US will continue to decline. None of the major problems we face will be addressed, only cheap freak shows and distractions.
My standing joke:
“WE MUST END OUR DANGEROUS DEPENDENCE ON FOSSIL FOOLS.“
Nicely said.
These people you speak are laughing at us (literally). When you are sitting at a poker table and don’t know who the mark is – it is you. Which is us. This is all kabuki theater.
Trump, the Clinton’s, Biden, and all these slimy useless pricks are in the big club. We ain’t. Plan accordingly. Carlin told us in 1991 and nobody listened.
They are simple, carved, figureheads at the front of a ship of state.
> Trump’s brief states, “A former President is subject to criminal process for his unofficial conduct;
While the charges in the DC indictment do seem to frame the riot as a culminating event (my words), the charges cover actions “From on or about November 14, 2020…”
There’s a section called “Manner and Means”) in point 10.a-e on pp.5-6 that gives an overview (my words/interpretation) of actions for counts 2-4 of the indictment.
If the argument in Trump’s brief as quoted above in the post is “A former President is subject to criminal process for his unofficial conduct” that would seem to exclude the crimes as they are described in the indictment.
https://www.justice.gov/storage/US_v_Trump_23_cr_257.pdf
edit: that would seem to exclude should be “the claim of immunity would seem to exclude…”
Nonfeasance is a crime. When someone is under oath to act, to protect something or to avoid harm, then it is a crime to sit and do nothing. Americans are more acquainted with malfeasance–the crime of doing something bad when in a position of authority. The Feasor is the doer or the maker of something. The Nonfeasor–in nonfeasance–is guilty of not doing or not making when obligated to do so.
The President of the United States is obligated to take action when anything Constitutional is threatened. Sitting in the dining room watching a remote video of the assault on the Capitol, and doing nothing, is the crime of nonfeasance.