Jim Hartman
The Supreme Court was both courageous and correct in agreeing to hear former President Donald Trump’s appeal of the D.C. Circuit Court of Appeals ruling denying his claims of presidential immunity.
This relates to the federal case against Trump’s efforts to undo the 2020 election. In an unsigned Feb. 6 opinion, a unanimous D.C. Circuit three-judge panel made a sweeping and dismissive ruling that Trump isn’t immune from prosecution.
Trump makes a claim of “absolute immunity” for anything a president does. That’s obviously wrong.
However, the D.C. Circuit went overboard in the other direction by declaring the president has no immunity.
In granting the appeal on Feb. 28, the Supreme Court ordered arguments limited to the key legal question:
“Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
A central part of the Supreme Court’s precedent on presidential immunity is found in Nixon vs. Fitzgerald (1982). In that case, Fitzgerald was fired and claimed it was at the direction of President Richard Nixon. He brought a lawsuit for damages.
The Fitzgerald case holds the president has “absolute immunity” from lawsuits for civil damages arising from the “outer perimeter” of any official duties taken while in office. Otherwise, it would be impossible for a president to fulfill those duties while in office.
Fitzgerald was a civil case involving a lawsuit but the current court clearly wants to evaluate whether that precedent applies to criminal prosecutions as well.
If a rush of civil lawsuits could be crushing to a president, the threat of post-presidential criminal prosecutions would likewise be crippling. The threat of jail is at least as serious as the threat of civil liability.
The D.C. Circuit opinion contends this is no problem for future presidents because Trump poses a unique threat to the rule of law.
Once a precedent is set for prosecuting a former president, as in this case with special counsel Jack Smith, why wouldn’t future Justice Departments do the same thing – beginning potentially with a former President Joe Biden in 2025?
Trump has already said “Joe would be ripe for indictment.” He cited no specific crime but federal statutes are voluminous and Trump could ask his Justice Department to charge Biden.
One of the other questions posed by the Trump case is whether his actions were within the “outer perimeter” of his official duties, as the Fitzgerald case framed it.
If Trump asked Vice President Mike Pence to perform a legislative action it looks like official conduct. But other allegations in the indictment, like convening electoral vote “sham proceedings,” might be classified as “electioneering” and not official duties.
The immunity question is important far beyond Trump’s case. The court’s decision will be binding on all future presidents.
Democrats are blasting the court for hearing the case, but presidential immunity is a seminal constitutional issue making Supreme Court review necessary.
The appeal is a blow to the timeline of special counsel Smith who wants to begin his trial over Trump’s Jan. 6, 2021 behavior before the November election.
The court set expedited oral arguments for the week of April 22, with a ruling probable in June.
If the court rules Trump has some immunity, it’s likely to remand the case to the trial court for a factual finding on whether Trump’s alleged criminal acts were part of his official duties. That would delay the trial until past the election or into 2025.
The blame for delay doesn’t rest with the Supreme Court. The court is following an expedited normal process. The fault lies with the Justice Department that waited until August 2023 to bring the case.
In the end, voters should be trusted to determine Trump’s fate.
E-mail Jim Hartman at lawdocman1@aol.com.