Donald Trump’s awkward immunity stance suggests that it would be news to presidents that they could be prosecuted for actions taken while in office. But in ruling against him Tuesday, the U.S. Court of Appeals for the D.C. Circuit plucked out two big historical examples to the contrary — and even added one that shows Trump himself was aware of the possibility before he was charged in the federal election interference case.
The three-judge panel’s unanimous opinion noted that “recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency.” It went on to cite the pardon of Richard Nixon by Gerald Ford, which, the D.C. Circuit panel observed, “both former Presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment.” The panel also recalled Bill Clinton, who, before leaving office, “agreed to a five-year suspension of his law license and a $25,000 fine in exchange for Independent Counsel Robert Ray’s agreement not to file criminal charges against him.”
On top of that, the panel cited Trump’s own impeachment proceedings, in which his counsel sought to fend off that process by pointing to the “judicial process” and “investigative process … to which no former officeholder is immune.”
So for Trump to have understood he could face prosecution, all he had to do was look to history — including his own. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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