Trump's arguments for protection from prosecution not hopeless

Trump's response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only 57 senators voted to convict him, short of the 67 needed – he was not liable for criminal prosecution

Former President Donald Trump's claims of immunity from criminal prosecution were argued before the US Court of Appeals for the District of Columbia Circuit on January 9, 2024 – on an interlocutory appeal from his trial for election interference. His arguments have been rejected by a district court judge, and the Supreme Court has declined to weigh in – for now. Commentators have described his immunity arguments as ‘frivolous’ and ‘absurd’. But such accounts underestimate the arguments' weight and at times misconstrue them. A related absolute immunity already exists Trump claims he is immune from federal charges on seeking to overturn the 2020 elections. His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity. Trump's lawyers are not claiming that he couldn't be prosecuted for, say, shooting a pedestrian on 5th Avenue. They are saying he can't be prosecuted for so-called ‘official acts’.

A related immunity has been recognised in the past. In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions. The principal rationale for this immunity was to allow the president “maximum ability to deal fearlessly and impartially with the duties of his office”. The case described the president as “the officeholder [who] must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system”, and held that the Constitution ensured he was not “unduly cautious in the discharge of his official duties”. Presidents should not take official actions with the fear of civil liability hanging over their heads. The question remained whether a president could be criminally charged for his official actions.

Trump claims he cannot. He argues that just as the Constitution protects presidents from civil lawsuits, it also protects them from criminal charges – and for an analogous reason: preserving the president's ability to make official decisions free from the fear of criminal prosecution. The brief of special counsel Jack Smith responded that it is actually good if presidents are worried about possible criminal liability. Moreover, while immunity to civil liability makes sense, because civil lawsuits can be filed by practically everyone and for myriads of petty reasons, criminal charges usually relate to weightier concerns, and their filings involve various checks and balances. Nevertheless, it is conceivable that courts would recognise presidential criminal immunity for official acts. If they do, the question would become how to define “official acts”, and whether the actions forming the basis for Trump's charges, which include many interactions with state and federal officials, qualify under that definition. It seems reasonable to believe that many of them do not and are better described as the acts of a candidate seeking reelection. But some of these acts might qualify. Made with Flourish The complication from the impeachment clauses Yet, the argument for absolute criminal immunity faced a preliminary hurdle: Article 1, Section 3, of the US Constitution states that while “Judgment in Cases of Impeachment shall not extend further than to removal from Office … the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”. In other words, the Constitution explicitly contemplates the criminal prosecution of a president. As a brief by the special counsel put it, “the Impeachment Judgment Clause entirely undermines the defendant's claim that a former president's immunity from criminal prosecution should be ‘absolute' … because a former president who has been impeached and convicted will be liable to criminal prosecution”.

Trump's response conceded that convicted presidents could indeed face criminal charges for their official acts. But he went on to claim that since he was acquitted – only 57 senators voted to convict him, short of the 67 needed – he was not liable for criminal prosecution. Trump's response became the subject of much disparagement. The New York Times called it an “even more audacious argument” than his claim of absolute immunity. But some of that criticism derives from an uncharitable interpretation of Trump's claims. Some critics construed the claim to mean that all officials who are subject to impeachment proceedings – which include “The President, Vice President and all Civil Officers of the United States” – could not face criminal charges for official acts unless they were first impeached and convicted of them.

A group of former government officials and constitutional lawyers wrote in a legal brief that Trump's argument “would permit countless officials to evade criminal liability”. They went on to say, “Such an outcome would … contradict decades of practice in which the Executive Branch has prosecuted, and the Judicial Branch has convicted, civil officers for crimes committed while in office – regardless of whether they were first convicted in an impeachment trial”. The special counsel made similar objections. Indeed, impeachment proceedings are very rare, and most eligible offenders never face an impeachment. Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office. But these strike me as straw-man arguments. Trump's claim that a president must be impeached and convicted before he can be criminally liable for official acts is premised on the background absolute immunity Trump has claimed for the presidency.

To quote from Trump's brief before the district court: “President Trump was acquitted … after trial in the Senate, and he thus remains immune from prosecution.” The key word is “remains” because, in Trump's argument, the impeachment clause provides an exception to the alleged background presidential immunity: Presidents are criminally immune for their official actions, unless they are impeached and convicted for them. In other words, nothing in Trump's argument prevents the criminal indictment of civil officers who have not been impeached at all, because they do not enjoy absolute criminal immunity to begin with. Does acquittal in an impeachment proceeding create or preserve criminal immunity? In his late briefs, Trump adds a second line of defence: He claims that his impeachment acquittal independently forestalls his criminal trial because of the ban on “double jeopardy”. That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not. The claim would work only if Trump's impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel. But the claim, in any case, is weak and at odds with some other statements Trump's briefs make. Indeed, since impeachment proceedings are not limited to official acts, accepting Trump's double jeopardy argument would mean that a president could also become immune for unofficial criminal conduct – such as shooting a pedestrian on 5th Avenue – if he were impeached for that act but acquitted. That argument proves too much, and would also be at odds with then-President Bill Clinton's agreement to a five-year suspension of his Arkansas law license in a settlement aimed at preventing his subsequent criminal prosecution for perjury – even though he was acquitted in the impeachment proceeding for that unofficial act. The stronger version of Trump's impeachment clauses argument presumes the president's absolute immunity for official acts. Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not.

That is why Trump's brief states, “A former President is subject to criminal process for his unofficial conduct; and he is subject to criminal prosecution for official acts for which he has been impeached and convicted”. Against a background of absolute immunity, Trump's impeachment clauses argument is not unreasonable. It all sounds a bit complicated, but the ensuing conclusion is simple: The impeachment clauses debate is a sideshow. The principal action in this appeal is whether presidents have absolute criminal immunity for official acts. In our present political culture, Trump's arguments for criminal immunity – and his corollary take on the impeachment clauses – may be seen by some judges and justices as stronger than some critics anticipate.

(The author is Professor of Constitutional Law, University of Oregon.)