Untouchable or Not? Breaking Down Trump’s Claims of Absolute Immunity
The race for the nation’s upcoming presidential election has gained intensity as the primary election date approaches. Notably, on the side of the Republican candidates, forerunner and former President Donald Trump has managed to increase both his support in the polls and media attention, likely due in part to the barrage of legal trouble and criminal inquiries he currently faces. The largest of these legal troubles is Trump’s federal indictment, delivered on August 1. This indictment named Trump and several other co-conspirators, arguing that they worked in tandem to undermine the 2020 election results and fuel the events of January 6. Amidst this and other criminal and civil cases, Trump and his legal team have maintained that absolute immunity protects the former president from all charges presented against him. This immunity claim, although staunchly defended by Trump and his supporters, may lack the legal precedent and support that the former president’s team argues it has.
On October 5th of this year, Donald Trump and his team filed a motion to the Federal District Court petitioning for the dismissal of his January 6 indictment on the basis of presidential immunity. This indictment alleges that President Trump was aware of his 2020 presidential election loss, yet widely and repeatedly disseminated falsehoods about election fraud swaying votes in favor of current President Joe Biden. The report outlines four criminal counts that Mr. Trump faces for his role in this series of events: conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The indictment additionally provides a free speech disclaimer, referencing President Trump’s inherent 1st Amendment right that allows discussion without redress:
“The Defendant had a right, like every American, to speak publicly about the election and even to claim, falsely, that there had been outcome-determinative fraud during the election and that he had won. He was also entitled to formally challenge the results of the election through lawful and appropriate means… Indeed, in many cases, the Defendant did pursue these methods of contesting the election results.”
The main issue, the indictment argues, lies within the pursuit of unlawful activity to further the legitimacy of these baseless claims. This pursuit includes the former president organizing fraudulent state electors and attempting to use the Justice Department to conduct knowingly fake election crime investigations. By explicitly identifying these issues, the indictment carefully draws the line between Trump’s technically legal dissemination of election misinformation and alleged criminal activity, foreseeing opponent criticism using the angle of free speech.
Trump and his defense team, however, did not wait for trial to argue the former president’s case on the basis of free speech. Rather, they base their argument in the October immunity motion around the unique presidential role within the U.S. constitutional structure. The team claims that this role renders absolute immunity necessary for the execution of duties. The motion heavily references Nixon v. Fitzgerald for support, a prior Supreme Court case upholding the constitutionality of presidential immunity concerning discretionary actions that do not violate previously established civil law. Fitzgerald points to the separation of powers as a basis for why the prosecution of a president for actions taken within the “outer perimeter” of their presidential duties would provide undue constrictions to their executive role. Trump’s immunity motion adopts this argument to assert that threats of his criminal prosecution for his role in an attempted overturn of the 2020 election by state or even subsequent federal officials would unconstitutionally hamper the President’s executive judgment.
Unfortunately for Mr. Trump, other Supreme Court precedents fail to buttress his argument for absolute immunity. Presidential absolvement from trial proceedings, civil or criminal, is largely absent within legal precedent. In the 1997 Clinton v. Jones case, decided post Fitzgerald, the Court ruled that President Bill Clinton could face a sexual harassment suit while in office. This weakens Trump’s absolute immunity claim two-fold. While Mr. Trump is currently out of office and seeks presidential immunity on the basis of a lack of immunity constricting executive duties, President Clinton faced a civil suit during his time in office that the Supreme Court upheld as constitutional. Even Fitzgerald, the case upon which the immunity motion consistently relied, pokes holes in the former president’s claims that he should be free from prosecution; Chief Justice Warren E. Burger emphasized in his concurring opinion that presidential immunity is limited to civil damage claims, not the criminal accusation to which Trump seeks to apply it.
Unsurprisingly, due to the shaky legal standing for Trump’s argument, federal prosecutors rejected the motion for absolute immunity. Special counsel Jack Smith echoed the arguments of many legal analysts—that a presidential immunity claim fails to hold up to Supreme Court precedent and constitutionality. However, a highly plausible purpose of this motion could have been to delay these criminal proceedings rather than to halt them, a tactic that may prove successful. Regardless of any delay, this case is far from the extent of President Trump’s legal troubles. A Colorado suit brought to court directly by voters with the aid of a political watchdog organization seeks to take him off the ballot completely. These individuals, citing Section 3 of the 14th Amendment, have demanded that the Colorado Secretary of State refrain from printing the former president’s name on the ballot, as it would detract from their ability to vote for a “qualified candidate in the general election.” Among this growing slew of legal battles, the nation must wait to see what Trump’s next move of defense or delay will be. Considering the former president’s current place in the polls, neither criminal nor civil proceedings may impede Trump in his second bid for the presidency.
Sinclair Harris is a first-year at Brown University concentrating in Political Science and History. She is a staff writer for the BULR Blog and can be contacted at sinclair_harris@brown.edu.
Veronica Dickstein is a sophomore at Brown University studying International & Public Affairs. She is a staff editor for the Brown Undergraduate Law Review and can be contacted at veronica_dickstein@brown.edu.