Norman Eisen & Joshua Kolb
In the blizzard of pretrial motions in the federal Jan. 6 case, the most potentially consequential is Donald Trump’s demand that the case be thrown out because he has “presidential immunity” against being prosecuted for his acts in office. While US District Judge Tanya Chutkan’s gag order has gotten more attention, her granting Trump’s request for immunity would not only derail the case, but also elevate future presidents above the law. Judge Chutkan and the appellate courts that will review her should reject Trump’s position – and speedily, lest the legal wrangling interfere with the March 4, 2024 trial date.
In his latest filing, Trump argues that the founders of our nation and the framers of the Constitution understood that the president must be able to serve in office without being inhibited by fear of future prosecution by political opponents. He points to legal sources expressing this protection that range from the Federalist Papers to the seminal Supreme Court case of Nixon v. Fitzgerald. It established an extremely deferential rule of immunity, holding that a president is immune for any actions arguably falling within the scope of his official duties, so long as they are not outside the “outer perimeter” of those job responsibilities as president.
Trump has also claimed that the federal executive branch has the responsibility to make sure federal elections are lawful. Accordingly, as the head of that branch, he was overseeing an unquestioned federal power in his conduct surrounding the 2020 election and therefore may not be prosecuted under the principles of presidential immunity. Or so the argument goes. Not so fast, prosecutors have argued in their brief, supported by an excellent amicus submission from former judges and other legal experts. They point out that the Fitzgerald case was a civil matter, where the stakes are much less and the rules are different. Criminal cases are reserved for the most serious misconduct in our judicial system, and neither Fitzgerald nor any other has ever created the kind of blanket presidential criminal immunity Trump seeks.
In our view, the government has the better argument. The principle upon which our nation was founded and that remains at the center of our justice system today is that no person – even a former president – is above the law. Giving a president absolute immunity would grant him essentially monarchical powers, antithetical to our history and our rule of law system. As a practical matter, DOJ points out that the implications of Trump’s position would “grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his 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.”
Still, because this issue remains unresolved after our 234-year constitutional history, it poses a challenge for the judge and for the appellate courts that will scrutinize her decision. We think the solution is to sidestep a final determination of the underlying and agonizing legal question of presidential immunity. The judge can avoid that by holding that Trump’s conduct was so extreme that whether you apply the exacting “no immunity” standard urged by the government or the more generous Fitzgerald “outer perimeter” test, he still loses. As we have previously argued, it is ludicrous to suggest that Trump’s actions in the wake of the 2020 election fell within the “outer perimeter” of his responsibilities as president. Presidents have no official role in adjudicating who won state-run elections, and the conduct here was the political machinations of a failed candidate, not the official duties of the commander-in-chief. We think Judge Chutkan will also see it this way, and we already have some insight into her perspective. In Trump v. Thompson, she authored the now-famous line that “Presidents are not kings, and Plaintiff is not President,” referring to Trump. She there harkened back to our nation’s origins to reject Trump’s claim that sweeping executive privilege blocked the January 6 Committee from subpoenaing his presidential records. That is a close cousin to Trump’s claim here that sweeping executive immunity blocks the special counsel from prosecuting him.
The judge will also have to contend with one other Trump legal sally, but it should not detain her for long. Trump argues that a president can only be prosecuted if he is first impeached and convicted. But that nonsensical view appears nowhere in the Constitution, as the DOJ has long maintained. Both of us have worked for Congress, one as counsel for a presidential impeachment and trial, and we would have been laughed out of our jobs had we advanced such an argument. Judge Chutkan is a fair-minded and conscientious jurist and will honestly wrestle with the merits of the arguments Trump has raised here. In our judgment, she and the appellate courts that will review her will ultimately reject Trump’s positions as inimical to the Constitution. But they must move briskly. In the ordinary case, such complex legal issues can take years to wind their way through all the way up to the Supreme Court. The commencement of trial is sometimes held until that painstakingly slow progress is concluded.
That is a luxury the country cannot afford. We need to know whether one of the leading candidates for the White House criminally abused the powers of the presidency to try to hold onto that office – which he seeks once more to attain. That resolution will only come once he is judged by a jury of his peers. In two other landmark precedents dealing with comparable executive powers, United States v. Nixon and Trump v. Thompson, lower court and appellate proceedings were completed in a little over three months in both cases.
The same must be done here to avoid any disruption of the trial scheduled for March. That coming Trump trial is not only a narrow attempt to hold him personally accountable. The verdict may well determine whether we continue as a democracy or put an autocrat in the White House. For the sake of our nation, Trump’s baseless absolute immunity defense must be rejected – and fast.
CNN
