By Ambassador Thomas Graham Jr. (Retired) and David Bernell
Former President Trump has asked the federal courts for sweeping immunity for virtually all actions he took as president. He says that acts committed in the White House are automatically official acts. His case reached the Supreme Court in April 2024 and a hearing was held to determine “Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The Court’s decision has yet to be known, and the country is anxiously awaiting it, as the implications of this case will be significant. At issue is whether or not the presidency is above the law. And in this particular moment, there is a second question as to whether the Supreme Court is giving Trump some assistance (or seen to be helping him) in his campaign for the presidency by delaying a trial until after the election. Considering the political divide in this country, whatever decision the Court reaches is likely to be seen as misguided, wrong and illegitimate by much of the population.
This case has stemmed from charges filed against Trump by the government in connection with the January 6, 2021 insurrection and attempted coup. The government claimed that Trump was directly involved and filed the charges against him on August 1, 2023. Trump pleaded not guilty to all four counts against him before a federal magistrate, and on October 5, Trump’s attorneys filed a motion to dismiss the charges based on presidential immunity. They asked for absolute immunity in part to ensure that future presidents could “act without fear that his political opponents may one day prosecute him for decisions they dislike.”
Two weeks later the prosecutors responded. They said that neither the Constitution nor Supreme Court precedent supports the sweeping immunity that Trump asserted. They argued that a former president may be investigated, indicted, tried, and if convicted, punished for conduct committed while in office. Trump has claimed all of his conduct involving January 6 was related to the peaceful transfer of power, an official act of the presidency. The prosecutors argued that they were not. They were the acts of a candidate for elective office, not the presidential office. Jack Smith, the Special Counsel, stated that Trump acted deceitfully or corruptly to gain a personal benefit for himself as a presidential candidate, “not to carry out constitutional obligations entrusted to the presidency.”
The case is being heard in U.S. District Court, where Judge Tanya S. Chutkan in December 2023 dismissed Trump’s request. She stated that the Constitution does not support his assertion that he is entitled to sweeping immunity for his alleged official acts. Whatever privilege and immunity a sitting president enjoys, it does not include “a lifelong get-out-of-jail-free pass.” The judge wrote in her opinion that, “Former presidents enjoy no special conditions on their federal criminal liability.” Therefore, the trial would proceed.
Things moved quickly at this point, as Trump’s lawyers filed an immediate appeal to Judge Chutkan’s decision. Within days, Jack Smith – knowing that this question would end up at the Supreme Court – asked the Supreme Court to bypass the DC Circuit Court of Appeals and rule whether Trump is criminally liable or not. The Supreme Court denied Smith’s request to fast-track the process. Still, on January 9, 2024, a three-judge panel of the Circuit Court (one appointed by President George H.W. Bush and two by President Biden) heard the immunity case oral arguments. The hearing lasted for several hours, and it led to some remarkable questioning to clarify exactly what Trump was asking. In one instance the judges asked whether Trump’s claim was arguing that a president could assassinate a political rival and escape criminal liability. Trump’s lawyers confirmed that this was exactly what they were saying.
On February 6, 2024, the panel ruled unanimously that Trump is not entitled to any kind of broad immunity while serving as president that would shield him from criminal liability after he leaves office. “For the purpose of the criminal case [January 6] former President Trump has become citizen Trump with all the defenses of any other criminal defendant.” The judges added in their opinion that, “[A]ny executive immunity that may have protected him while he served as president no longer protects him against the prosecution.” The judges decided that Trump is not entitled to assert immunity by official acts and the court cannot accept President Trump’s claim that a president has unbounded immunity to commit crimes that would neutralize the most formidable check on executive power – the recognition and implementation of election results. “It would be a striking paradox if the president, who alone is vested with the Constitutional duty to ‘take care that the laws be faithfully executed’ were the sole officer capable of defying those laws with impunity,” the three judges wrote.
As expected, Trump appealed to the Supreme Court quickly, arguing that, “without immunity from criminal charges, the Presidency as we know it will cease to exist.” Trump also accused the Special Counsel of trying to force candidate Trump off the campaign trail with a lengthy criminal trial at the peak of the campaign. In response, Special Council Jack Smith asked the Court to reject Trump’s request and let the D.C. Court ruling stand so the trial could proceed. “If Trump is granted absolute immunity,” he argued, “it would upend understandings about presidential accountability that have prevailed throughout history while undermining democracy and the rule of law.” Smith added that if the Court disagrees with his argument, it should at least move on an expedited basis and render a decision quickly.
Since the cased ended up with the Supreme Court, things have slowed down considerably. In an unsigned order on February 28, the Justices agreed to decide whether Trump has presidential immunity from prosecution for official acts allegedly committed while in office. However, the Court set oral arguments for April 25, two months later. The competing legal arguments offered to the Supreme Court reiterated their claims. Trump’s lawyers argued that, “From 1789 to 2023, no former or current president faced criminal charges for his official acts for good reason.” The presidency cannot function as the president “if the president faces criminal prosecution for official acts once he leaves office.” By contrast, the Special Counsel argued that Trump’s alleged scheme to subvert the transfer of presidential power was outside the limit of duties of the office and therefore were private acts, not official acts. “The president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.” Even if the Court finds presidential immunity can be extended to a former president’s “official acts” after he leaves office, Trump can still be prosecuted, because the allegations against him involve “a private end and [the] petitioner’s effort to remain in power by fraud.”
The logic of Jack Smith makes intuitive sense. Summoning a crowd to Washington DC on January 6, saying “it’s going to be wild,” and telling them to “fight like hell” do not pass a common-sense test of being considered an official act of the presidency. By the same token, it strains credulity to imagine a call to the Georgia Secretary of State demanding 11,000 more votes to reverse the people’s vote for president in Georgia an official act. As Liz Cheney recently said, “POTUS has no role in the 1/6 count. When a candidate pressures/threatens the President of the Senate (Pence) pressures and lobbies state legislators and members of Congress, and oversees a fraudulent electoral scheme, his acts are private. And plotting to appoint an AG in a quid pro quo for help on 1/6 parallels C.J. Roberts’ bribery hypo.” She further noted that right after the 2020 election, when Trump challenged the election results, “Trump told SCOTUS in his 12/9/20 brief that he was filing in his ‘personal capacity as a candidate.’ The Court need not resolve more difficult immunity Q’s not at issue here. Rule quickly and decisively.”
The Supreme Court has once again put itself right in the middle of American politics, all while some Justices deny that this is what they are doing (though Justice Alito has been more openly political in his statements). Unsurprisingly, the Justices appeared divided in the oral arguments. Most Justices appeared open to at least some level of immunity for official acts for former presidents. The question for them seemed to be about where to draw the line between acts considered official, which would be immune from prosecution, and those considered private, which would not be protected. This is an important distinction, not only for the law, but also for the ability to hold a trial before the election. Laurence Tribe – a constitutional scholar who has himself argued cases before the Supreme Court – commented that Trump’s lawyers did acknowledge, when questioned by Justice Barrett, that at least some of the allegations against Trump do not involve official acts. To that end, the prosecution could move ahead immediately with those charges. However, Tribe argued, while there is “zero chance that the Supreme Court will rule in Trump’s favor on the merits of his immunity claim, [there is] a substantial chance that it will go along with his attempt to drag this out long enough to escape trial until after this November’s election.”
The former president’s claims are so broad (such as saying it’s legal for a president to have his political rivals assassinated), that any legal affirmation of them by the Court would be not only highly improbable, it would also be seen by at least half the country as illegitimate and nakedly political. What is up in the air is how broadly or narrowly the Court intends to rule. Justice Gorsuch has said that the Court is writing a “rule for the ages.” This would likely entail a complex, highly legalistic ruling that might require several issues to be decided in the District Court before Trump’s trial could begin. A narrower ruling could simply decide that Trump’s acts surrounding January 6 were those of a candidate for office, not official acts of the presidency. This route would avoid the complications and allow the trial to proceed right away.
On the other hand, if Justices Alito, Thomas, Gorsuch, and Kavanaugh – who all seem politically inclined to support Trump, and who seem amenable to delaying the trial sufficiently for Trump to avoid a judgement before November – can get one more Justice to join them, they would be likely to reject the path of offering a narrow ruling. This puts all eyes on Justices Barrett and Roberts to see how they will rule. Will they lean toward their fellow conservatives (all appointed by Republican presidents), or will they join Justices Jackson, Kagan and Sotomayor (appointed by Democrats) in deciding the legal question of which acts cannot be charged in a slimmed-down indictment and quickly lifting the stay of the trial proceedings in Chutkan’s District court?
In short, this question is whether the Justices, particularly Barrett and Roberts, care more about preserving the Constitution and the rule of law than about protecting Trump. If the Constitution prevails, they could still save the day. We’ll find out, but maybe not until the end of June, which would be a significant signal itself. As Laurence Tribe noted, voters will know if “we have a Supreme Court majority who think that preserving the power of a former president who aims to be a dictator is more important than giving the people the information we need to make an existential choice as voters.”
It is a tragedy of American politics that we even find ourselves in this extraordinary situation. We have never had a president or former president charged with committing crimes and standing trial for them. And we have never had a person so mired in scandal and alleged criminality running as a major party candidate for president. The country would be far better off had Trump chosen not to run for office again. But here we are, testing our institutions, our politics, our norms and our practices. The practice in American politics is that we don’t file criminal actions against presidents in office with regard to what policies they follow and their official acts. It would be only proper that this immunity continues after the president leaves office. But a president enjoys immunity from criminal prosecution only for truly official acts both while in office and thereafter. (The one possible exception might have been Richard Nixon, who almost certainly would have been prosecuted for criminal acts had President Ford not pardoned him, but it is unclear what official or private acts might have been viewed as crimes by prosecutors.) Likewise, no one except for possibly Trump and his lawyers seem to believe that the president has immunity for his private acts, whether in or out of government. In this case the president is and should be subject to the rule of law like anyone else. If certain acts are claimed to be official but actually were private, there would be no immunity, and just because a defendant claims an act is official does not make it so.
The views of Special Counsel Jack Smith and the DC Circuit Court of Appeals are sound. There is no total immunity, so the trial of Trump with respect to acts that are obviously private should begin as soon as possible. Any other Constitutional issues can be addressed later (or maybe not at all in this case). This is not the time to get bogged down in legalistic details, and to argue for this course would appear to be a ploy to protect Trump from accountability for his actions on January 6. A prompt trial will serve voters and the country best, so people can know if Trump is acquitted or convicted for his actions. The voters deserve to have this information and to know where the law stands on Trump’s culpability before they cast their ballots in November.
About the Authors
David Bernell is an Associate Professor of Political Science in the School of Public Policy at Oregon State University. His research and teaching focus on international relations, American domestic and foreign policy, and US energy policy. He is the author of the books Constructing US Foreign Policy: The Curious Case of Cuba, and The Energy Security Dilemma: US Policy and Practice. Prior to coming to OSU, he served as an appointee in the Clinton Administration with the US Office of Management and Budget, and with the US Department of the Interior.
Ambassador Thomas Graham Jr. is former acting director of the U.S. Arms Control and Disarmament Agency under President Clinton, and the special representative of President Clinton for Arms Control, Nonproliferation and Disarmament. He served as General Counsel of ACDA during the presidencies of Jimmy Carter, Ronald Reagan and George H.W. Bush. He is the author of several books on nuclear arms control, U.S. foreign policy, and American politics.
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