Trump’s Claim of “Absolute Immunity” from Jan. 6 Prosecution Is Risible
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On Thursday, Donald Trump’s legal team filed a long-awaited motion to dismiss the special counsel’s 2020 election interference charges on presidential immunity grounds. We anticipated that Trump would mount this defense even before the charges officially dropped in a model prosecution memo on the case earlier this summer and published an extended takedown of the arguments. Now that the motion is here and we can judge the substance, it is still likely to fail.
Trump argues that the conduct underlying the charges in special counsel Jack Smith’s indictment falls within the “outer perimeter” of Trump’s official responsibilities as president. But this is the standard for civil immunity for presidents; although Trump’s lawyers try to apply this standard, courts have never even established that presidents enjoy any immunity from criminal prosecutions. Indeed, a close reading of that case suggests that five of the nine justices on the court thought that it did not.
Even if Judge Tanya Chutkan were to apply that standard, Trump’s alleged conduct falls well outside the outer perimeter of his duties. As we explained in the model prosecution memo:
Trump’s conduct in the many schemes leading up to January 6 or in the insurrection itself does not remotely qualify for any form of immunity. Simply put, the president has no role to play in counting or tabulating ballots—or certifying results—in presidential elections.
To deal with this problem, in their motion Trump’s lawyers go to great lengths to rebrand the conduct alleged in the indictment with a series of innocuous-seeming descriptions, such as that he “made public statements about the administration of the election,” “communicated with senior Department of Justice officials about investigating election fraud and about choosing the leadership of DOJ,” and “communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it.” They argue that the prosecution has charged Trump for official acts taken with allegedly improper motives—motives that, in any event, cannot alone curtail immunity.
These attempts to spin the descriptions of the conduct alleged in the indictment such that they might reasonably be viewed as falling within the outer perimeter of the president’s conduct are unpersuasive at best and dishonest at worst.
No neutral observer hearing Trump’s Jan. 2 phone call to Georgia Secretary of State Brad Raffensperger—during which Trump asked him to “just … find 11,780 votes”—would describe it as a mere communication with a state official about his duties. It was a naked attempt to pressure a state official to overturn the results of a free and fair election—one that had already been decided—in Trump’s favor. That was not within the outer perimeter of Trump’s responsibilities as former president but, rather, went far beyond it.
As explained in the model prosecution memo:
There are good, self-evident reasons why our legal system does not give the sitting president a role in counting, tabulating, or certifying the election for his successor—an election in which he may be a candidate. Any claim that Trump’s apparent involvement in the creation of false electoral slates claiming victory in states he lost, in a campaign to pressure Pence to unilaterally override the will of the voters, or in directing a group of armed and violent rioters to the Capitol to disrupt the certification of the election results was in furtherance of official federal business, rather than in pursuit of personal political gain, will not stand. Such a claim offends the Constitution’s structural safeguards against electoral self-dealing, as well as its prohibitions against making any single person or official the judge of their own case.
A string of controlling appellate cases is adverse to Trump, from the Supreme Court’s decision in U.S. v. Nixon to more recent decisions in the U.S. Court of Appeals for the District of Columbia Circuit regarding Trump’s assertions of similar arguments against the House Jan. 6 committee’s document subpoenas and Smith’s grand jury subpoenas of senior Trump administration officials. Indeed, Trump’s legal team repeatedly cites the Jan. 6 case Thompson v. Trump but merely asserts that it was wrongly decided, neglecting to note that he appealed the case to the U.S. Supreme Court and the justices denied his petition. In the civil context, Chutkan’s colleague Judge Amit Mehta, also rejected the identical Trump argument in the Blassingame case.
Court rulings in the Fulton County case on removal are also instructive. Trump’s chief of staff Mark Meadows sought to remove his criminal case in Fulton County, Georgia, from state to federal court by making similar arguments to Trump’s—that Meadows is entitled to immunity because the conduct alleged in the indictment related to his duties as a federal official. The presiding federal judge, Steve Jones, flatly rejected that argument, explaining that the Constitution does not provide for any White House involvement with state election and post-election procedures.
Jones also pointed out that the Hatch Act prohibits federal employees from engaging in political activity and that the activities in question were campaign-related, not official business. Jones highlighted that the lawyers on Trump’s call with Raffensperger were not from the DOJ or the White House Counsel’s Office, but were Trump’s personal and campaign attorneys—evidence that this was campaign activity falling well beyond the outer perimeter of federal duties. Jones also rebuffed similar points made by former DOJ official Jeffrey Clark in rejecting his removal motion. Chutkan is likely to reach the same conclusion.
Additionally, the implication argued by Trump that an acquittal in an impeachment somehow precludes criminal prosecution is absurd. It is true that the Constitution says that if a president is convicted in impeachment, he or she can later be subject to prosecution. The reason that the framers were silent about what happens to presidents who are acquitted in an impeachment is that it is so obvious—of course, they too remain subject to other, non-impeachment processes such as indictment. Trump cites reasoning by Justice Samuel Alito in Trump v. Vance, but that was in dissent and is not the holding or reasoning of that case. The majority of the court did not go for it, because it makes no sense.
Chutkan is likely to reject the motion, and the appellate courts will probably uphold that decision. Of course, we’ll have to wait to see how the DOJ responds and how Chutkan ultimately rules. But the facts and the law are clear—Trump’s efforts to overturn the results of an election he knew he lost do not fall within the outer perimeter of his official responsibilities as president. Not even close.
