Trump’s claim of ‘absolute immunity’ from Jan. 6 prosecution is risible

By | October 7, 2023

Norman L. Eisen and Joshua Kolb write:

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. [Continue reading…]

Shan Wu writes:

If Trump’s motion to dismiss based on his claims of absolute presidential immunity are found to be appealable pre-trial on an interlocutory basis, then the case almost certainly will reach the Supreme Court. Although Trump has frequently been disappointed by SCOTUS not backing his legal theories, this one may be different because it involves expansion of executive authority. Trump’s appointments of three young conservative justices–Amy Coney-Barrett, Neil Gorsuch, and Brett Kavanaugh–has created a powerful conservative majority. That conservative majority has indicated a leaning towards favoring expansion of presidential authority under the theory of the “unified executive theory.” Most recently, in the case involving whistleblowers, three justices (Thomas, Kavanaugh and Coney-Barrett) indicated their willingness to consider cases involving this theory in the future. A decision by SCOTUS upholding immunity from criminal prosecution for presidents would do more than allow Trump to escape accountability. It would transform U.S. presidents from chief executives into kings. [Continue reading…]

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