Perspective 136. Trump: Can He Be Prosecuted?
Donald Trump says that “a president of the United States must have full immunity, without which it would be impossible for him/her to properly function.” U.S. courts and the Department of Justice do, in fact, recognize presidential immunity from prosecution for actions taken as part of official duties. Does this leave room for the (ongoing) indictment of Trump for his part in the January 6 insurrection?
Yes. Trump’s incitement of the Jan. 6 rioters can hardly be described as a part of his official duties. Trump’s tantrums were those of a defeated candidate, not of a president acting within his constitutional role. The president’s responsibility is to keep the peace; Trump was the actual disturber of the peace.
In perspective, the Constitution says nothing directly about presidential immunity from prosecution. The only relevant clause says that a president who has been impeached and convicted is “liable and subject to Indictment, Trial, Judgment and Punishment according to the Law.” Does this mean the president was not subject to prosecution before being impeached and convicted? Nothing in the Constitution supports this view.
But after the Civil War is became clear that the president should be protected in the performance of his duties. The state of Mississippi tried to sue President Andrew Johnson over Reconstruction issues, and the Supreme Court established the still-standing principle that the president could not be taken to court for performing his duties. To this the Department of Justice, in two memoranda before and after the Nixon era, added the determination that presidents could not be prosecuted for any offense while in office. This last limit, however, is only administrative policy, not a binding court decision.
In any event, it should be recalled that Trump was not executing his official duties in trying to overturn the 2020 election, and that he is no longer in office.
In Trump’s mental universe, can a president be prosecuted for assassinating a political rival? This question was actually asked in recent court proceedings, and Trump’s lawyer responded that a president could be prosecuted for such an act only if impeached and convicted first. But, as one of the judges pointed out, this removes the absolute immunity that Trump claims. If there are circumstances in which a president can be prosecuted, then there is no blanket immunity, but only the question of whether impeachment is necessary first. And again the Constitution says no such thing.
The judges hearing the case, to put it mildly, expressed deep skepticism about claims of a presidential prerogative to submit false slates of electors and to obstruct Congress from certifying the true slates. Trump is claiming that he was acting as president to investigate election fraud. It is as though a burglar claimed he broke into a house to see if there were any stolen goods there.
It is hard to believe that even the current Supreme Court, even with its extreme tilt, could buy this bill of goods. Talking to you, Sam and Clarence. If you go along with this unbelievable bilge, you will have removed any remaining doubt about your complete moral corruption.