Can Presidents Claim Absolute Immunity? Legal Experts Weigh In on Trump's Defense
Former President Trump's legal team asserts his 'absolute immunity' in a case questioning his potential liability This immunity claim has significant implications for presidential accountability and the rule of law
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Former President Donald Trump has consistently claimed that his supporters are so loyal that he could shoot someone in the middle of Fifth Avenue in New York City and not lose their support.
During the federal court hearing on Tuesday, one of Trump's lawyers argued that there is a possibility that he may not face prosecution. The key issue is whether presidents, including Trump, have "absolute immunity" from being prosecuted. Trump is currently facing four criminal prosecutions and his tactic is to not only delay the trials but also to claim that he cannot be prosecuted due to protection against political prosecutions.
The federal government's first criminal prosecution of Trump for interfering in the 2020 election has been temporarily halted as questions of immunity are being reviewed in the appeals process. During a court session in Washington, DC, Trump's lawyer was presented with hypothetical scenarios by Judge Florence Pan, a nominee of President Joe Biden and one of three judges overseeing the appeal.
Would a president face prosecution for selling pardons or state secrets? No, Trumps lawyer John Sauer said, so long as he was not impeached and convicted first.
A hypothetical assassination
Then, Pan went a step further.
"Could a president order SEAL Team 6 to assassinate a political rival? That is an official act - an order to SEAL Team 6," Pan said.
According to Sauer, it is not necessarily the case. Sauer suggested that in order to protect democracy, it is essential to have an additional layer of impeachment and conviction before a president could face criminal prosecution.
"In such exceptional cases, a swift impeachment and conviction would be anticipated," Sauer stated in a discussion with Pan. "But the real concern of the founders was what James Madison referred to as 'new-fangled and artificial treasons' in Federalist No. 47." However, Federalist No. 43 is where Madison actually made the statement about "new-fangled and artificial treasons."
Trump avoided impeachment conviction because of possible prosecution
Pan, together with the other two judges, was highly skeptical of the notion that Trump has complete immunity. Pan also pointed out that Sauer himself was making allowances for exceptions to immunity in cases where impeachment and conviction in the House and Senate have taken place.
The assumption that impeachment and conviction must precede criminal prosecution is complicated by the recent history of Trump's impeachments. McConnell, the Kentucky Republican who was Senate majority leader at the time, voted to acquit Trump in the Senate impeachment trial following the January 6, 2021 insurrection, stating that he believed Trump should be held accountable through criminal prosecution.
McConnell stated, "In this country, we have a criminal justice system and civil litigation. Former presidents can be held accountable by either." However, Trump and his legal team disagree and continue to make shifting arguments to defend him, based on what is most convenient at the time, with no consistent ideological basis.
Trump later contended in a social media post that without such complete immunity, Biden could face prosecution for his handling of the situation at the US-Mexico border. It's a challenging argument to make, considering that Trump is currently facing prosecution for his attempts to overturn an election and retain power, rather than for his presidential duties.
When asked about Trump's immunity argument on Capitol Hill Tuesday, McConnell reaffirmed his criticism of Trump after the January 6 attack, but he declined to state his opinion on whether presidents should have special immunity.
"Well, my view of the presidential race is that I choose not to get involved and comment about any of the people running for the Republican nomination," he said.
Haley rises in New Hampshire
Despite the genuine legal threats that Trump is facing, his carefully crafted image of victimhood has not had a negative impact on his political standing. He continues to be the frontrunner for the Republican Party's presidential nomination, although a recent CNN poll in New Hampshire indicates that former South Carolina Gov. Nikki Haley has made significant gains, narrowing Trump's lead to less than 10 percentage points.
Haley's surge seems to be driven by independent voters in New Hampshire, rather than the GOP base.
According to CNN's Ariel Edwards-Levy, Haley's support among undeclared voters (New Hampshire's term for independent registrants) has increased by 18 points since November. Additionally, her support has grown by 20 points among ideologically moderate voters.
Perhaps his front-runner status is why rather than spend time with voters in Iowa or New Hampshire on Tuesday, Trump was in Washington, watching oral arguments in his absolute immunity appeal.
