On Tuesday, former President Donald Trump filed a brief to support his claim that former presidents should be immune to criminal prosecution for conduct alleged to involve official acts during his tenure in office.
On August 1, 2023, in Washington, D.C., Trump was charged in a four-count indictment as a result of his actions challenging the election results and interfering with the sequence set forth in the Constitution for the transfer of power from one President to the next,” the United States Court of Appeals for the District of Columbia Circuit ruled in early February. “Former President Trump moved to dismiss the indictment and the district court denied his motion. Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The brief filed with the Supreme Court by Trump noted that from 1789 to 2023, no former, or current, President has ever faced criminal charges for his official acts, adding, “The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.” The brief argued that a president’s “personal vulnerability,” to such prosecution would affect his decisions as president.
“A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency,” the brief contended.
The brief noted that in the landmark case Marbury v. Madison, the Supreme Court held that a President’s official acts “can never be examinable by the courts,” adding, “Continuing Marbury’s tradition, this Court held in 1982 that the courts cannot hold a former President personally liable ‘for acts within the outer perimeter of his official responsibility.’”
“The Court should restore the tradition from Marbury to Fitzgerald—unbroken until last year— and neutralize one of the greatest threats to the President’s separate power, a bedrock of our Republic, in our Nation’s history. The Court should uphold the President’s immunity from criminal prosecution for official acts,” the brief stated.
The brief noted numerous presidents who had committed allegedly “criminal” official act in the eyes of their political opponents:
For example, John Quincy Adams was accused of a “corrupt bargain” in appointing Henry Clay as Secretary of State after Clay delivered the 1824 election to him in the House. Andrew Jackson disregarded this Court’s rulings and forced the resettlement of many people, resulting in the infamous “Trail of Tears.” President Roosevelt imprisoned over 100,000 Japanese Americans during World War II. President Clinton repeatedly launched military strikes in the Middle East on the eve of critical developments in the Monica Lewinsky scandal, with the likely goal of deflecting media attention from his political travails. President Clinton also pardoned fugitive financier Marc Rich, resulting in widespread accusations of criminal corruption, including illegal quid pro quo. President George W. Bush was accused of knowingly providing false information to Congress about Saddam Hussein’s “weapons of mass destruction” in order to launch the Iraq War on false pretenses, leading to the deaths of over 4,400 Americans, with almost 32,000 wounded. President Obama targeted and killed U.S. citizens abroad by drone strike without due process. President Biden’s mismanagement of the southern border, dealings with Iran, and funding of pro-Hamas groups face similar accusations.
The brief continued:
In all of these instances, the President’s political opponents routinely accuse him, and currently accuse President Biden, of “criminal” behavior in his official acts. In each such case, those opponents later came to power with ample incentive to charge him. But no former President was ever prosecuted for official acts—until 2023.
The Founders were keenly aware that politically motivated prosecutions pose a grave threat to republican government. … The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases. They were unwilling to burn the Presidency itself to the ground to get at every single alleged malefactor.
The D.C. Circuit’s alternative holding is untenable and contradicts this Court’s well- established precedent. Perhaps its proponents find the theory attractive because they believe that making immunity turn on “the specific charges in the Indictment,” would effectively deny criminal immunity to President Trump only, while leaving all other Presidents immune. If so, that is not a strength but a fatal defect of the theory.
As DOJ has written, “the constitutional concern is not merely that any particular indictment and criminal prosecution of a sitting President would unduly impinge upon his ability to perform his public duties. A more general concern is that permitting such criminal process … would affect the underlying dynamics of our governmental system in profound and necessarily unpredictable ways, by shifting an awesome power to unelected persons lacking an explicit constitutional role vis-a-vis the President.”
Thus, the consequences of this Court’s holding on Presidential immunity are not confined to President Trump. They will affect the Presidency itself for the rest of our Nation’s history.