In his endless quest to delay the criminal cases pending against him, just before Christmas Donald Trump asked the D.C. Circuit Court of Appeals to dismiss the federal election interference case against him. The former president is arguing that he is entirely immune from criminal prosecution for actions he took while in office. If Trump succeeds, special counsel Jack Smith would have to dismiss one of the two federal criminal cases pending against Trump. He should not succeed, and likely will not.
Trump’s argument is based on the fact that the president enjoys legal protections that you and I do not. The doctrine of “presidential immunity” shields presidents from things like civil suits for official actions taken while in office, and from having to provide another branch of government with certain sensitive information involving foreign or domestic security. This is an acknowledgement that we need to allow the president to make a myriad of decisions everyday and we don’t want the president distracted by lawsuits based on those decisions.
There are many limits to the doctrine of presidential immunity.
The Supreme Court has never definitively ruled on whether a president or former president can be criminally prosecuted for acts undertaken while president. That is because we have never had a president engage in the type of behavior Trump engaged in when he fruitlessly attempted to hang on to the presidency after he lost the election.
But legally, this question is not a tough one. There are many limits to the doctrine of presidential immunity. Former President Richard Nixon learned this when he unsuccessfully argued that he should not have to turn over the secret tapes he made in the Oval Office to the special counsel investigating the Watergate affair. So both legal precedent and the fundamental principle that no person is above the law lead to the same conclusion.
Recently, the Supreme Court declined Smith’s request to expedite resolving the question of whether Trump is immune from criminal prosecution in the federal election interference case. On the one hand, we can view the court’s decision as a win for Trump. The court’s unwillingness to jump into the fray and rule on this question before the D.C. Circuit hears and rules on the question could delay the case’s resolution. The longer this case drags on, the better it is for Trump.
But on the other hand, the Supreme Court’s decision to wait for the D.C. Circuit to rule might actually be bad news for Trump. If, as many expect, the D.C. Circuit concludes that Trump is not immune from criminal prosecution, then Trump will appeal to the high court. But the court doesn’t have to take the case. By declining to hear the case, the D.C. Circuit court’s decision would stand. The Supreme Court also could simply affirm the D.C. Circuit’s ruling without a full briefing and oral arguments. The court’s decision not to intervene now could actually indicate there’s really no reason for their involvement because this is not a close call.
The legal brief Trump’s team filed before the D.C. Circuit this past weekend proves as much. The big problem Trump faces is arguing that his allegedly illegal acts to hold on to power should be viewed as a president’s official acts. In reality, these actions are the last gasps of a candidate desperately trying not to accept the clear outcome of an election.
Seeking to prevent Congress from certifying the Electoral College vote is not an official act by a president. It makes a good deal of sense to protect presidents from having to defend against a myriad of civil suits, some of which would no doubt be politically motivated. It makes little sense to protect a president or former president from criminal prosecution. “Whatever immunities a sitting President may enjoy,” wrote U.S. District Judge Tanya Chutkan in dismissing Trump’s initial appeal, “that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” This is why the D.C. Circuit is likely to reject the arguments Trump made in favor of his position that his alleged attempts to illegally seize power should be immune from criminal prosecution. Seeking to prevent Congress from certifying the Electoral College vote is not an official act by a president. It is the act of a loser, ignoring reality in an attempt to seize power. The D.C. Circuit will hear oral arguments in this case on Jan. 9. They should acknowledge that Trump’s arguments do not present novel legal theories, but instead suggest a tired political ploy to indefinitely delay the federal criminal charges pending against him. Judicially created doctrines like presidential immunity serve a purpose. Presidents do not have normal jobs, and they are entitled to some level of protection. We want presidents to feel free to make decisions for the public good. But we also want them to know that if they break criminal laws, they will pay for it. Because these presidents are, presumably, still presiding over a nation that values the rule of law. The judges should follow their own doctrines, instead of perverting them for Trump’s gain.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
