What to know about Trump's immunity claims in the 2020 election cases
Why it matters: The precedent set by his case will have bearing on executive power and how presidents may be held accountable for abusing it.
- He is the first former president to have been denied immunity from criminal charges, though that's primarily because no other sitting or former president has been charged with a crime.
- A three-judge panel for the U.S. Circuit Court of Appeals for D.C. ruled on Feb. 6 that the claims of presidential immunity could no longer apply to Trump because he's no longer president.
- The immunity fight has already delayed Trump's trial in the federal election interference case.
What they're saying: "For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," the panel wrote.
- Trump has until Feb. 12 to appeal the decision to the Supreme Court.
Catch up fast: The Supreme Court previously rejected special counsel Jack Smith's request to quickly rule on Trump's immunity claims, forcing the immunity question to go through normal federal judicial proceedings.
- The case was paused while Trump's team appealed a lower-court rejection against his immunity claims.
- Trump on Jan. 8 also tried to claim immunity from Georgia's criminal case against him, which accuses him of leading a conspiracy to overturn election results in the state.
What is Trump arguing?
Lawyers for Trump have argued that the federal Jan. 6 case should be dismissed on the grounds of presidential immunity.
- They cite the 1982 Nixon v. Fitzgerald case, which granted the president immunity from civil damages — but not criminal charges — stemming from his official duties.
- By citing the case, the lawyers have argued that Trump cannot be charged for any crimes he may have committed because he was acting within his official capacity as president.
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law."
- They claim the clause dictates that a president can only be criminally charged if he is the "party convicted" in a Senate impeachment trial.
- And since Trump had been tried and acquitted within the Senate for his actions around the Jan. 6 riot, they say he cannot be a "convicted" party and therefore cannot be criminally charged for those actions.
- He's used the Impeachment Judgment Clause to make a similar argument while attempting to get a dismissal in the Georgia case.
Why some lawyers call his argument "absurd"
Former government officials and constitutional lawyers in an amicus curiae brief filed in December said that the impeachment argument wasn't just "absurd" but had dire consequences for the rule of law.
- If upheld, they said it could effectively immunize former presidents and other impeachable officials for criminal conduct that takes place or is discovered "too late for the impeachment process to run its course."
- The argument was also rejected by some members of his own party after the Senate trial.
- For example, Senate Minority Leader Mitch McConnell (R-Ky.) said Trump could still face the criminal justice system or civil litigation, saying, "former presidents are not immune from being held accountable by either one."
What has Jack Smith said about Trump's defense?
In a filing in December, Smith said Trump's immunity defense, if upheld, would deeply damage the rule of law and the country's democratic process.
- As examples, he said it would allow a president to order the National Guard to murder his critics, sell nuclear secrets to a foreign adversary or direct the FBI Director to plant incriminating evidence on a political enemy.
- If Trump's legal argument is upheld, Smith said, a president who commits such acts should not fear potential criminal prosecution because he can "assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy."
- "Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability," Smith said.
What is presidential immunity?
The Constitution does not explicitly mention or confer immunities to the president as it does with members of Congress through the Speech and Debate Clause.
- Instead, the legal theory around presidential immunity has developed over the years, largely through the Supreme Court's interpretation of Article II, Section 2 of the Constitution, which defines presidential powers.
The legal theory largely stems from Nixon v. Fitzgerald, in which a former U.S. Air Force analyst argued he was unjustly fired by then-President Richard Nixon after testifying to a congressional committee.
- In a 5–4 decision, the Supreme Court found that the president enjoys immunity from civil lawsuits for damages resulting from official duties of his office, but not those arising from unofficial conduct.
- The Supreme Court further refined this immunity in the 1997 case Clinton v. Jones, which centered a sexual harassment suit filed by a former Arkansas state employee against then-President Bill Clinton.
- The court ruled that Clinton could not invoke the civil immunity defense for acts committed before taking office or acts unrelated to the office.
Is the president immune to criminal prosecution?
Whether the president enjoys enjoys immunity from criminal prosecution remains somewhat of an open question, largely because the courts have never had to issue a direct answer on the matter.
- However, the Supreme Court has discussed the prospect of criminal immunity for the president in similar cases.
- In Nixon v. Fitzgerald, for example, the court's majority opinion explicitly distinguished criminal and civil liability and stated that the immunity granted in the case "is limited to civil damages claims."
- In United States v. Nixon, a 1974 case stemming from the Watergate scandal, the Supreme Court held that the president does not have absolute immunity from all judicial processes, including criminal proceedings.
Though the Supreme Court has never held that a sitting president is immune from criminal prosecution, the Department of Justice has taken that position for decades.
- Its position was defined by two memorandums, one issued in 1973 and another in 2000.
- The Justice Department holds that the indictment or criminal prosecution of a sitting president would undermine the executive branch's ability to perform its constitutional functions.
- However, according to the Justice Department's Office of Legal Counsel, the memorandums do not prevent former presidents from being indicted or tried for offenses, even if he is impeached by the House for the offenses but is acquitted by the Senate.
Editor's note: This story has been updated with additional developments.