Heather Cox Richardson Jan. 9, 2024
On the docket today in front of three judges on the U.S. Court of Appeals for the D.C. Circuit was the question of whether former presidents can be prosecuted for things they did while in office. The issue at hand is whether Trump can be tried for his attempt to overturn the 2020 presidential election, but Trump has also been charged in three other criminal cases: a national case over his mishandling of national security documents, a state case in Georgia for interfering with the 2020 election there, and a state case in New York for paying hush money to adult film actress Stormy Daniels. He is also facing a number of civil cases.
A federal grand jury working under Special Counsel Jack Smith brought four criminal charges against the former president on August 1. Trump’s lawyers have argued not that he didn’t do what he is accused of, but that his position as president at the time gives him immunity from prosecution for breaking laws. In this case, they are arguing that he cannot be tried now because he has already been impeached and acquitted for his actions. They argue that a president can be charged criminally only if he has been impeached and convicted.
A quick reminder: Impeachment is a political process, not a legal one. A president could be impeached simply for watching TV all day, which is not a crime but which would make it impossible to do the job. Another reminder: as NBC’s Vaughn Hillyard documented today, in Trump’s second impeachment trial, his own lawyer Bruce Castor assured the Senate that “the text of the Constitution…makes very clear that a former President is subject to criminal sanction after his presidency for any illegal acts he commits.”
A number of Republican Senators—including then Senate majority leader Mitch McConnell (R-KY)—agreed, saying they would acquit Trump but expected him to answer to the law rather than the political system. “We have a criminal justice system in this country,” McConnell said. “We have civil litigation. And former Presidents are not immune from being held accountable by either one.”
Interestingly, Trump’s argument that he cannot now be charged with crimes makes the Republican senators who voted to acquit him complicit. It’s an acknowledgement of what was clear all along: they could have stopped him at any point, but they repeatedly chose not to. Now he is explicitly suggesting that their behavior shields him from answering to the law.
Today, Trump’s lawyer D. John Sauer told the court that so long as he was not impeached and convicted for his actions, a president could do virtually anything. “Could a president order SEAL Team Six to assassinate a political rival?” Judge Florence Pan asked. “That’s an official act: an order to SEAL Team Six.” Sauer answered that Congress would have to impeach and convict that president before he could be charged with a crime. “But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan asked. Sauer again emphasized that Congress would have to act before any indictment could take place. “So your answer is no,” Pan said.
In his brief to the court opposing Trump’s claim, Special Counsel Smith pointed out that there is nothing in history to support Trump’s argument and that Nixon’s accepting a pardon “reflects the consensus view that a former President is subject to prosecution after leaving office.”
Trump’s approach, Smith wrote in a hard-hitting paragraph, “would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could 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. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully.”
While presidential immunity is a crucially important question, it seems unlikely that any court will conclude that a U.S. president can act however they wish without any accountability before the law. Certainly the framers of the Constitution never intended such a thing (if you listen closely, you can hear them spinning in their graves). More recently, in 1974, the Supreme Court in United States v. Nixon ruled unanimously that President Richard Nixon could not use claims of executive privilege to withhold evidence from a criminal prosecution. Even more recently, on December 29, three judges on the U.S. Court of Appeals for the D.C. Circuit ruled that Trump does not have absolute immunity from civil lawsuits.
But the more pressing immediate question is when the court can resume progress on the case, which is stalled during appeals. The case is scheduled for trial on March 4, and Trump has been trying to drag it out—as he has all his trials—with the evident hope that it can be delayed until after the election. When Trump appealed the decision of the district court that he was not immune, Special Counsel Smith tried to move things along by taking the case directly to the Supreme Court, but the court declined to take it at that point. The case will almost certainly end up there again, at which time the justices could let the appeals court decision stand or agree to take it up. If they take it up, they could decide it quickly or delay it until after the election.
Today, in The Bulwark, nineteen former Republican members of Congress called on the courts, especially the Supreme Court, to move the case forward as quickly as possible. Calling out “Trump’s gambit to escape accountability altogether: assert an unprecedented claim of absolute presidential immunity from criminal prosecution and use the appellate process to delay the trial until after the November election,” they defended the public’s right to have “critical information they need before they cast their ballots in November.”
Noting that as former members of Congress, they were “not persuaded that the argument [for presidential immunity] has any basis in law or history,” they said that whatever the courts decide, they should do it quickly. “Permitting delay would…undermine the rule of law [and] the integrity of the 2024 election,” they wrote.
Although it is unusual for a defendant to attend such a hearing, Trump was at court today, clearly intending to use the case as part of his campaign. Perry Stein of the Washington Post noted that Trump recently lied to supporters that President Joe Biden was “forcing me into a courtroom in our nation’s capital” to weaken his campaign.