Former President Donald Trump claims that the president of the US is totally immune from felony prosecution.
On March 19, 2024, Trump filed his temporary with the U.S. Supreme Courtroom within the case introduced by particular counsel Jack Smith for Trump’s alleged felony makes an attempt to overturn the 2020 election.
Trump argued within the temporary that the Supreme Courtroom should dismiss the felony indictment towards him as a result of his alleged conduct constituted official acts by a president and that presidents have to be afforded absolute immunity for his or her official acts.
To help his competition, Trump cites Supreme Courtroom instances, the Federalist Papers, and different writings from authorized students. Trump argues that these paperwork present presidents maintain absolute immunity from felony prosecution.
However as a constitutional regulation scholar, I do know that these writings, in actual fact, say the other. They are saying U.S. presidents will not be completely immune from felony prosecution.
If a pupil of mine had submitted a quick making the arguments that Trump and his legal professionals assert of their Supreme Courtroom submitting, I might have given them an F.
Sitting in judgment
It’s customary apply for an individual concerned in a lawsuit and their legal professionals to cite previous instances and different authorized writing to help their arguments.
It is usually frequent for litigants to cite the Supreme Courtroom justices themselves – both from their previous opinions or different writings, similar to regulation evaluation articles – to advance their arguments.
However it isn’t customary apply to characterize these instances and paperwork as saying one factor once they say the exact opposite.
Trump begins by citing Marbury v. Madison from 1803, which is among the courtroom’s most consequential instances. He argues that Marbury v. Madison stated {that a} president’s official acts “can by no means be examinable by the courts.”
However Trump ignores the paragraph that instantly follows that passage within the Marbury opinion, which states that when Congress “proceeds to impose” authorized duties or directs the president to “carry out sure acts,” the president “is to this point the officer of the regulation (and) is amenable to the regulation for his conduct.” In different phrases, when Congress enacts a regulation, the president should comply with it.
Trump additionally argues that, in accordance with the Structure, “federal courts can not sit in judgment immediately over the President’s official acts.”
This assertion is opposite to scores of instances the place federal courts have reviewed presidential acts. Whereas the federal courts have usually refused to direct the president to carry out a selected process, federal courts recurrently decide whether or not a president’s actions are legally permissible.
Take Biden v. Nebraska. President Joe Biden sought to cancel greater than $400 billion in federal pupil loans. Biden argued that he had the authority to take action beneath the Larger Schooling Reduction Alternatives for College students Act handed by Congress in 2003 – often known as the HEROES Act. That act grants the secretary of training the authority to “waive or modify” pupil mortgage packages throughout nationwide emergencies.
A number of conservative-leaning states challenged the mortgage forgiveness, and the Supreme Courtroom concluded that Biden didn’t have the authorized authority to cancel the federal pupil loans beneath the HEROES Act as a result of the plan was not a “waiver” or “modification.” Right here, as they did in numerous different instances, the federal courts sat “in judgment immediately over the President’s official acts.”
Citing Kavanaugh
However the primary authorized query stays – whether or not a president holds, as Trump claims, absolute immunity from felony investigations and prosecutions for a president’s official acts.
From a coverage perspective, Trump claims that “useful issues” warrant absolutely the immunity that he seeks as a result of if a president is topic to felony legal responsibility, that authorized publicity “will cripple … Presidential decisionmaking.”
Donald Trump speaks on the Save America March rally on Jan. 6, 2021, in Washington, D.C. Photograph by Tayfun Coskun/Anadolu Company through Getty Pictures
To additional this declare, Trump depends on a 2009 regulation evaluation article by Decide Brett Kavanaugh, then of the U.S. Courtroom of Appeals for the District of Columbia Circuit, who now sits on the Supreme Courtroom. Trump quotes Kavanaugh, who wrote that “a President who is worried about an ongoing felony investigation is sort of inevitably going to do a worse job as President,” which Trump supplies as proof of help for the place {that a} president requires absolute immunity.
However even a cursory studying of Kavanaugh’s article reveals that Kavanaugh argued just for a deferral of a felony prosecution till after a president leaves workplace.
As Kavanaugh states, “The purpose is to not put the President above the regulation or to eradicate checks on the President, however merely to defer litigation and investigations till the President is out of workplace.”
Merely put, the underlying premise of Kavanaugh’s article is {that a} president could be held criminally accountable for his conduct.
Civil instances vs. felony instances
It’s true, nevertheless, that presidents take pleasure in absolute immunity from civil legal responsibility for his or her official acts. That situation was settled in Nixon v. Fitzgerald.
In that case, A. Ernest Fitzgerald misplaced his job as a administration analyst with the Air Drive. In keeping with Fitzgerald, he was terminated in retaliation for his testimony earlier than Congress about value overruns of $2 billion on a transport airplane venture.
After tapes emerged by which then-President Richard Nixon was heard ordering that Fitzgerald be fired, Fitzgerald sued Nixon for retaliatory termination. The Supreme Courtroom concluded {that a} president enjoys absolute immunity for his acts “throughout the outer perimeter of his official accountability.”
Nixon v. Fitzgerald is a civil case. Trump urges the courtroom to increase the presidential immunity established on this civil case to felony issues. However he overlooks the basic distinction between the civil justice system and the felony justice system.
The aim of the civil justice system is to make an injured celebration entire once more. However the objective of the felony justice system is to guard society, as a result of crimes are understood to be harms towards the general public.
Wayne Unger, Assistant Professor of Regulation, Quinnipiac College
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