Donald Trump filed a motion on Thursday that, if successful, would crush his federal election interference case in Washington. His lawyers argue the indictment should be dismissed based on presidential immunity.
However far-fetched it sounds, it’s important to examine the argument because it comes in what’s arguably Trump’s most serious criminal case with the firmest and soonest trial date (in March), and because it raises a question that could be decided by the Supreme Court one way or the other.
To be sure, Trump isn’t making up the fact that presidential immunity exists in the law in some form. But the Supreme Court has only granted it in the civil context, and in limited circumstances at that. So he’s trying to shoehorn his criminal claim into that civil framework.
Even if Trump doesn’t prevail, he may benefit most from any litigation delay it gives him.
To understand why, look back to that civil immunity precedent, Nixon v. Fitzgerald. The case stemmed from the firing of an Air Force analyst who had testified to Congress about cost overruns. He sued Richard Nixon and the Supreme Court said the president was immune from damages liability based on official acts.
“In view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility,” the court said in that 1982 case.
Notably, the chief justice at the time, Warren Burger, was mindful of criticism that the 5-4 ruling placed presidents above the law (sound familiar?). He emphasized in a concurring opinion that it’s “limited to civil damages claims.” He said it’s “one thing to say that a President must produce evidence relevant to a criminal case,” like in United States v. Nixon, and “quite another to say a President can be held for civil damages for dismissing a federal employee.”
It’s against that backdrop that Trump claims immunity from prosecution. Citing Nixon v. Fitzgerald, he argues in his 52-page filing:
Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President.
Rhetoric about precedent and “the incumbent administration” aside, it’s laughable to even imply that trying to overthrow an election has anything to do with presidential responsibilities, much less the heart of them. Of course, Trump’s lawyers describe their client’s conduct much more innocuously than is laid out in special counsel Jack Smith’s indictment. Prosecutors no doubt knew this claim was coming and will offer a much different view in response on both the facts and the law. Whatever U.S. District Judge Tanya Chutkan decides, the Supreme Court could have the final word. So even if Trump doesn’t prevail, he may benefit most from any litigation delay it gives him, a topic that’s apparently on his mind as he just asked U.S. District Judge Aileen Cannon to push the classified documents trial off through the 2024 election. Winning that election, of course, is still his best defense. Subscribe to the Deadline: Legal Blog newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump prosecutions 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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