Former president Donald Trump’s attorneys filed a motion on Oct. 5, 2023, to dismiss federal charges that he illegally tried to overthrow the 2020 election, arguing presidential immunity. The motion alleges that the president has absolute immunity ”for acts within the ‘outer perimeter’” of the responsibilities he had while serving as president. That language is borrowed from the Supreme Court opinion in Nixon v. Fitzgerald (1982), which had dismissed a civil damages suit against former President Richard M. Nixon for actions he took as president, in this case for dismissing an Air Force contractor because of testimony that he gave before Congress.
Touching at least indirectly on presidential First Amendment free expression rights with respect both to his tweets and speeches to the public, and to communications with his vice president, staff, and cabinet members, Trump’s brief argues that Trump has immunity from prosecution for any statements or tweets about the 2020 federal election and its certification; for any communications with the Department of Justice’s investigators about the election or about attempts to appoint a new acting attorney general; for any communications with state officials about the election and their duties with respect to the election; for any similar communications with his vice president; and for any communications with respect to organizing alternate slates of state electors.
Trump argues immunity for his speech, actions about overturning election
In arguing that the president should be exempt for actions performed even within the “outer perimeter” of his official responsibilities, the brief relies on the doctrine of separation of powers and on the president’s unique role and duties. It argues that the process of impeachment and conviction is the exclusive method of seeking to call a president to task for crimes committed while he was in office. The brief cites early authorities, contends that 234 years of U.S. history support presidential immunity for criminal prosecution, and argues that such immunity is consistent with sound public policy.
Citing the rationale of Nixon v. Fitzgerald, the brief further argues that the court cannot examine presidential motives lest it open the door to future frivolous suits against presidents who were simply trying to do their job.
If such actions were excluded, special counsel Jack Smith’s case in federal court in Washington, D.C. against Trump would be severely weakened, at least with respect to any actions that he took while he was in office. The arguments would not necessarily affect separate federal charges in Florida that Trump retained classified documents after leaving office and attempted to cover up his actions.
Trump says only way to deal with potential crimes is by impeachment
The arguments come close to the English notion, which American Founders clearly repudiated, that “the King [or any executive] can do no wrong,” but they are far better presented than most other arguments that the Trump team has advanced to date.
One of the most fascinating parts of the brief concerns its interpretation of Article I, Section 3, paragraph 7 of the Constitution. It provides that:
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.
This provides the basis for Trump’s brief to argue that impeachment and conviction (along with certain political guards) are the only means of punishing a president for criminal acts while in office, as long as such acts fall within the “outer perimeter” of his duties (presumably, wisely excluding Trump’s proclamation that he could get away with shooting someone in broad daylight on Fifth Avenue in New York).
Trump’s interpretation of Constitution should be rejected for logical reasons
There are several reasons to reject these clever arguments.
For a starter, one might question how many of Trump’s extraordinary efforts in election denial and repudiation fell within the “outer perimeter” of his duties. A president has every right to express dismay over election results and to contest such results in court (as Trump did without success), but the Constitution certainly imposes some limits on actions by a sitting president who is seeking to retain an office that he has legitimately lost. Although courts do not typically examine presidential motives, it may legitimately take judicial notice of flagrant violations of the public trust.
One can also question the interpretation of Article I, Section 3, of the Constitution as prohibiting criminal prosecutions of individuals who were not convicted of impeachable offenses.
Although the Trump reading is initially plausible, there is a better one. It would read the section as a whole as dealing only with individuals who are convicted of impeachment charges and as saying absolutely nothing about those (like Trump) who were not. On this reading, the provision is simply making clear that Congress has limited penalties it can impose when it convicts individuals of impeachable offenses, namely removal from office and possible barring from future office, but that does not preclude courts from inflicting future penalties for criminal offenses.
Those like Trump who are impeached and not convicted would simply be in the position they would have been in had they never been impeached in the first, or in Trump’s example, the second case. There is no indication that exoneration of impeachment (which relates to holding and/or qualifying for public office) was also intended to be a get out of jail free card.
History supports view that president can still face judicial system after presidency
There are at least two additional reasons to support this second interpretation.
First is the very prominent speech that Republican Sen. Mitch McConnell gave at the end of Trump’s second impeachment trial. Announcing that he considered Trump “practically and morally responsible” for the events of Jan. 6, 2021, McConnell, who had voted to exonerate Trump of high crimes and misdemeanors in part because he did not believe the Senate had the power to convict an ex-president, said, “We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Second is the controversial pardon that President Gerald Ford issued to former president Richard M. Nixon who had resigned before Congress was able to impeach and convict him. Noting Nixon’s liability for possible prosecution “as a result of certain acts or omissions occurring before his resignation from the Office of President,” Ford granted “a full, free, and absolute pardon” to Nixon for all offenses against the United States” which Nixon “has committed or may have committed or taken part in” during his presidency. Such a pardon would hardly have been necessary if former presidents were already exempt from prosecutions.
Trump’s argument leaves no way of punishing presidents for crimes discovered after leaving office
Presidents need broad leeway to do their job, but as the Supreme Court emphasized in rejecting executive privilege to withhold documents needed in criminal cases in United States v. Nixon (1974), they are not above and beyond the reach of the law.
If the argument of Trump’s brief is accepted, there would be no way of punishing presidents for even egregious conduct that members of Congress had not discovered until after they left office or perhaps even for crimes for which they escaped impeachment and conviction by resigning in a timely fashion.
The First Amendment certainly gives the president the right to express his opinions, but, as is well known, freedom of speech does not cover speech involved in connection with conspiracy to undermine the law or with incitement to imminent violent action.
Immunity for decisions made to enforce or execute the laws should not extend to actions designed to thwart them. No person, king or potentate, president or ex-president should be above the law if it is proven through due process in the courts that they have violated such laws, particularly for their own benefit, regardless of presumed immunity for ordinary presidential decision making. The Constitution did not intend for them to be.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University.