Opinion: The Failure of Trump's Immunity Claim in Court
The article challenges the concept of presidential immunity, arguing that it undermines the rule of law and the principle of separation of powers Written by Laurence Tribe, Norman Eisen, and Taylor Redd
Laurence Tribe, Norman Eisen, and Taylor Redd of Brookings Institute discussed Donald Trump's appeal for criminal immunity in a recent commentary for CNN. The DC Circuit Court of Appeals heard oral arguments on this case, and the former president's presence indicated the significance of the issue. The commentary observes that based on the judges' questions and the overall argument, it strongly suggests that Trump is likely to lose his appeal.
Judge Florence Pan, notable as the panels most incisive questioner, immediately challenged Trumps counsel John Sauer with a hypothetical scenario that revealed the alarming implications of Trumps extreme position: Could a president who used his official authority to order SEAL Team Six to assassinate a political rival ever be prosecuted?
Republican presidential hopeful and former U.S. Ambassador to the United Nations Nikki Haley meeting with voters during a campaign town hall at Last Chair Brewery and Restaurant in Plymouth, New Hampshire, U.S., on December 28, 2023. (Photo Credit: Brian Snyder/Reuters)
Trump is spreading a birther lie about Nikki Haley. The question answers itself, and Sauer couldn't reconcile his client's immunity claim with other confounding hypotheticals about extreme presidential action—an ominous sign for how Trump's appeal will ultimately fare.
Sauer repeatedly attempted to use an escape hatch that malfunctioned on Tuesday, arguing that his position was not extreme because of the impeachment judgment clause in the Constitution. He insisted that the Constitution allowed prosecution of a former president only after being impeached by the House and convicted by the Senate for the same conduct.
The panel rejected this argument, not taking it seriously. A major flaw in the argument is that the impeachment judgment clause actually states the opposite of what Sauer claims. It specifies that a convicted party in an impeachment trial shall still be liable and subject to indictment, trial, judgment, and punishment according to the law. Essentially, the clause establishes the rule that presidents can still be prosecuted even if they are convicted of impeachment, rather than stating that presidents can only be prosecuted if first convicted by the Senate.
Senators defending Trump during his 2021 impeachment trial argued that an acquittal would leave him fully accountable for criminal prosecution later on. Even Trump's own counsel admitted the possibility of later prosecution at the time. Judge Pan criticized Sauer for not arguing for absolute immunity, but instead claiming that an impeachment conviction was a precondition for prosecution. Her implication was clear: if the court dismissed his nonsensical interpretation of the impeachment judgment clause, there would be nothing to stop the prosecution of Trump.
Repeatedly, both Trump's legal team and the government, represented by assistant special counsel James Pearce, emphasized one crucial topic: the separation of powers - the intricate and evolving allocation of authority among the executive, legislative, and judicial branches.
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The Trump team attempted to argue that this principle requires presidential immunity. However, elevating presidents above the law by shielding them from criminal accountability reverses the separation of powers and undermines the rule of law. In fact, even Judge Karen Henderson, who was appointed by President George H.W. Bush and was expected to sympathize with Trump, pointed out that it seemed contradictory to claim that a president's constitutional duty to ensure that laws are faithfully executed entitles him to violate those same laws.
The absence of a specific constitutional provision granting immunity to presidents for crimes committed while in office is attributed to the separation of powers principle. Instead of resolving this issue, Trump relied on the structure of the Constitution and the framers' intent, but his arguments were invalidated by the special counsel and the judges' inquiries. Judge Michelle Childs emphasized that Trump's claim of immunity contradicts the nation's history, citing President Gerald Ford's pardon of Richard Nixon as evidence. Trump also contended that the DC Circuit should adopt the civil immunity standard from Nixon v. Fitzgerald to bar his prosecution in this criminal case. However, even if this standard were expanded to criminal cases, it would only apply to actions falling within a president's official duties.
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The DC Circuit seems likely to reject Trump's immunity claim and may also consider whether his immunity appeal can be resolved during the current stage of the prosecution. Even if the judges determine that his appeal should have waited for the normal post-trial proceedings, we anticipate they will still rule on the appeal's merits and reject it as baseless to avoid delaying the case bouncing between trial and appellate levels.
The American people deserve answers regarding Trump's potential abuse of presidential power as he seeks to regain office and undermine democracy. Based on the recent proceedings and the urgent handling of this appeal by the DC Circuit, it appears that the panel is poised to address the issue without delay. It is anticipated that a ruling will be made promptly, possibly within the coming week. It is also expected that Trump's bold assertion of absolute immunity for former presidents who abuse their power will be dismissed.
