Trump’s Secret Plan to Expand Presidential Immunity to ‘King George’ Levels

Asawin Suebsaeng and Adam Rawnsley
·10 min read
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This month, Donald Trump’s lawyers have argued in a federal appeals court that he, as a former American president, is “absolutely” immune from criminal prosecution, possibly even if he were to order the assassination of his political enemies. But the arguments that Trump’s lawyers are currently litigating in public are just a preview of Trump and his allies’ private plans to dramatically expand presidential immunity, if he defeats Joe Biden in the 2024 election.

According to two sources who have discussed the topic with the ex-president since last year, Trump and people close to him intend to expand a Nixon-era memo from the Justice Department’s Office of Legal Counsel that has effectively prohibited the department from prosecuting sitting presidents for decades. Some Trump advisers and others familiar with these discussions say they plan to have a thoroughly Trumpified OLC issue a new memo, which would advise that the department should prohibit the prosecution of presidents even after they leave office. (The existing Department of Justice memo is generally interpreted as applying to presidents only when they are in power.)

These ideas have been briefed to Trump by a handful of right-wing lawyers and longtime associates over the past several months, the two people with direct knowledge of the situation say.

Since leaving the White House, Trump has been dogged by special counsel investigations and criminal prosecutions. The Trump administration-in-waiting aims to prevent a repeat of this situation; their preliminary plan would effectively place the president above the law, both in office and outside of it, for any acts even vaguely related to his official duties. The move would face numerous hurdles, and a future administration could easily reverse such a memo. But the effort, if consummated in another Trump term, would be an attempt to leverage the deference many administrations have given to OLC opinions. Even if the planned memo were rescinded, it would still offer a rhetorical and political fig leaf for Trump to use to fight future prosecutions. It’s also not outside the realm of possibility that a future president might appreciate the idea of having a permanent immunity shield for life, and choose to maintain it.

For all its ambition, the plan for an OLC-issued legal shield may be less effective than certain members of the Trump legal braintrust hope. At the moment, a federal appeals court in Washington, D.C., is set to rule on — and appears skeptical of — similar arguments presented by Trump’s lawyers in an appeal arising from the special counsel’s election subversion case against the former president. Whether or not Trump and his team are ultimately successful, the planned immunity memo would represent yet another major test of the country’s political and legal institutions by Trump.

This reporting is based on interviews with two sources who’ve spoken to Trump about this in recent weeks, a conservative attorney close to the Trump family, and written communications reviewed by Rolling Stone.

The 1973 OLC memo that the Trumpworld elite hopes to expand upon lacks the force of law but as a matter of policy, administrations since the Nixon era have deferred to it as the settled guidance for how to handle potential presidential crimes while in office. The memo, issued amid a special prosecutor’s investigation into President Richard Nixon’s Watergate scandal, concluded that the department should not indict “a sitting president” because criminal proceedings “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

In 2000, Bill Clinton’s OLC issued a second memo on the subject that concurred with the original memo. The two memos formed the basis of the Justice Department position that also helped keep then-President Trump free from potential criminal charges during Special Counsel Robert Mueller’s wide-ranging probe into Russian interference in the 2016 U.S. presidential election.

The memos as they exist don’t lend much support to Trump’s hopes for complete immunity for life.

“Certainly former presidents are no longer sitting in office, so the idea that it pulls them off of their task at hand under Article II [of the Constitution] doesn’t make any logical sense because they’re no longer president,” explains Kimberly Wehle, a law professor who has written extensively on the subject of the 1973 and 2000 OLC memos.

But Trump and attorneys representing him have argued before the Washington, D.C., appeals court that the former commander in chief is immune to prosecution after leaving office for any official acts he undertook as president, and that impeachment is the sole remedy to redress criminal wrongdoing undertaken by a president in office.

Now, Trump wants to enshrine that line of argument into Justice Department policy.

In theory, the DOJ’s Office of Legal Counsel is supposed to provide independent legal advice on weighty constitutional questions and matters of federal law. But Trump is hoping to make the office — and much of the federal government — an instrument of his whims.

The former president’s aides and policy architects say that could happen primarily through a second administration’s personnel choices. Trump plans to appoint a reliably loyal and pliable attorney general and stack the DOJ with a pre-vetted roster of MAGAfied lawyers who would be more responsive to the White House, and effectively erase the federal cases against him.

For much of Trump’s post-presidency, a vast network of MAGA policy hands (including hard-right mainstays of Trump’s orbit, like former White House aide Stephen Miller) and legal counselors have developed plans for a “government in waiting.”

Should Trump retake the White House, many of his allies and aligned organizations have already drafted white papers and policy blueprints detailing how Trump could immediately gut and remake the federal government, especially at the Department of Justice, to his will.

Several of these preliminary plans — some of which have been briefed to Trump and were devised by lawyers and MAGA diehards hoping for jobs in a second Trump administration — involve wielding the Justice Department to try to turn the ex-president’s fantasy of “total” legal immunity into something closer to reality.

But Trump — who is now running as the 2024 GOP presidential frontrunner term while under indictment in multiple criminal cases — clearly sees his elastic definition of “absolute” presidential immunity as central to his political future, and as something that may determine whether or not he serves any prison time. Since at least 2022, Trump has been making it clear to advisers and longtime confidants that a key reason he wants to be president again is to save himself from criminal investigations.

Trump’s spokesperson did not respond to a request for comment from Rolling Stone.

The effort to turn Trump’s arguments in the criminal case against him into Justice Department policy faces a number of hurdles. Foremost among them is that the D.C. appeals court is already poised to answer the question that an OLC memo would seek to settle when it rules on whether the special counsel election subversion case can move forward to trial.

An OLC memo may also not have the effect of fully tying the hands of a successor administration’s Justice Department. “These memos aren’t even law,” Wehle says. “[Trump] could do that if he wants, and then a Democrat could come in and revise the memo again.”

It’s happened before. Shortly after taking office in 2009, President Barack Obama rescinded guidance from George W. Bush’s OLC that justified the torture of detainees affiliated with al Qaeda. There’s no reason to believe that a future administration would feel any more bound to a Trump OLC’s advice on presidential immunity.

Of course, there’s always the chance a future president or attorney general holds a position on presidential immunity that is as expansive and self-serving as Trump’s view. And even if another administration were to rescind or override a Trump-era OLC memorandum, Trump can claim, however flimsily, that prosecutors are running afoul of preexisting Justice Department policy.

“I think they’re trying to make a record so that they can use the official Justice Department position on something as law,” says Wehle. “If there was later a different administration that changed the memo and then sought to prosecute, he could go to federal court and say the DOJ has already said he’s protected.”

So far, Trump’s position hasn’t convinced too many legal experts — including veterans of his own White House.

“During the Trump-Russia investigation, OLC memos played a consequential role. I and my team, as well as the Mueller lawyers, took them seriously and they framed the basis for the cooperation of the White House in a way that preserved executive privilege,” says Ty Cobb, formerly a top Trump White House attorney handling Special Counsel Robert Mueller’s investigation. “Typically, OLC opinions are sought only where the case law does not already provide an answer as to a constitutional issue. A potential new memo expanding presidential authority or immunity would not be taken seriously by anyone concerned with, among other things, the rule of law or the Constitution.”

Cobb — who nowadays says that former President Trump is “inherently evil” — adds: “An opinion like that from the Department of Justice would constitute an attempt to turn Donald Trump into a King George, which the framers sought desperately to avoid. The Constitution was written to prevent something precisely like that from ever happening. At the end of the day, an OLC memo like that would likely be ineffectual and would be jettisoned if ever litigated and would not survive a subsequent competent attorney general. Ethical concerns about the integrity of any author of such an opinion would be well-founded. No one in history has stress-tested the Constitution the way Trump has, and what he and many of his people are clearly trying to do doesn’t have anything to do with presenting a legitimate legal argument. They can argue Donald Trump is above the law and can execute political rivals, and they can put it in writing, but it won’t make it so.”

Trump’s own views on presidential immunity are neither principled or consistent, as he has routinely called for Biden to be prosecuted. One of the sources who discussed the OLC matter with Trump recently tells Rolling Stone that they told the former president that, if he gets back in office, the Justice Department doesn’t have to issue a new memo on immunity until “later in [Trump’s second] term.” Such a cynical approach would account for the fact that as a sitting president, Trump would already have immense presidential immunity — and give a Trump Justice Department time to prosecute Biden, if it really wanted to do so, before trying to provide Trump his lifetime shield.

Still, Trump has signaled that his desire to enjoy expansive presidential immunity for himself outweighs his desire to potentially exact retribution against Biden.

“EVEN EVENTS THAT ‘CROSS THE LINE’ MUST FALL UNDER TOTAL IMMUNITY, OR IT WILL BE YEARS OF TRAUMA TRYING TO DETERMINE GOOD FROM BAD,” Trump wrote in an all-caps social media post earlier this month. “ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER … GOD BLESS THE SUPREME COURT!”

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