Consider the following statements:
"Do you not know that I am above the law?" Charles I to the Duke of Somerset (1640’s): Macaulay’s The History of England;
“When the President does it, it’s not illegal.” Nixon to David Frost (interview 1977):
“President Trump is absolutely immune from the claims made in these lawsuits” for civil damages to Capitol Police officers injured defending the Capitol January 6, 2021, and to Congressmen forced to flee their chambers and stop their certification of the 2020 election (Brief for Donald J. Trump to dismiss suits to the D.C. Circuit Court, July 27, 2022); and
“Where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution” and therefore the federal criminal indictment against Trump for January 6 must be dismissed. (Motion of Donald Trump to the D.C. District Court, Oct. 5, 2023.)
Such sweeping statements of executive immunity in fact worked out for none of those speakers: Parliament, as maker of the law, answered Charles I’s arrogance by having his head struck off outside the Banqueting House at Whitehall in 1649; Nixon, despite his bravado to Frost, had previously accepted a Presidential Pardon necessarily implying his acceptance of guilt; and on a recent single day, Friday, December 1, 2023, two different courts in D.C. denied Donald Trump’s claims of Presidential immunity against serious civil suits and criminal indictments stemming from the January 6 riot, and his attempt through election lies to stop the election certification. The path remains open for now for the January 6 civil and criminal trials of Donald Trump to proceed in the federal courts of D.C. starting in the spring—likely to conclude before the Republican Convention starts July 15.
True, Presidents and former Presidents enjoy absolute “official-act immunity” from civil suits tied to their official acts. Thus, a civil plaintiff, Ernest Fitzgerald, was not allowed to sue President Nixon for damages for Nixon’s official act of firing him from his government job. By contrast, though, the Supreme Court held in the Paula Jones case against President Clinton in 1997 that Paula Jones’ suit for civil damages could proceed while Clinton was President. Jones sued for sexual advances before Clinton became President, not for his official acts as President.
Similarly, the D.C. Circuit Court held that former President Trump’s acts and speech at the Ellipse leading up to the January 6 riot that could lead to his liability may be shown at trial, as alleged, if made by him as “an office-seeker, not office-holder”. Further, the court wrote, “when a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act.” Also, while Presidents typically speak on matters of public concern, when they do so in an unofficial capacity immunity does not apply. The Court wrote: “The President, though, does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity from damages liability just because he happens to be President.”
While it is thus possible for Presidents and former Presidents alike to show immunity exists in a civil case for “official acts” (but not for “unofficial acts” like seeking office), Judge Chutkin in the D.C. District Court ruled it is different in criminal cases. She wrote former Presidents like Donald Trump do not enjoy “absolute immunity for any federal crimes they committed while in office.” Period. After all, “criminal conduct is not part of the necessary functions performed by public officials.” And while “every President will face difficult decisions,” Mr. Trump “is the only former President in United States history to face criminal charges while in office.”
Indeed, invoking a contrast to the statements of Charles I and other British Monarchs, Judge Chutkin wrote Mr. Trump’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” Paraphrasing prior Supreme Court law, she wrote: “‘No man in the country’, not even the former President, ‘is so high that he is above the law.’” She concluded: “former Presidents do not possess absolute federal criminal immunity for any act committed while in office.”
Most poignantly, Judge Chutkin cites George Washington’s Farewell Address as President. She writes: “Exempting former Presidents from the ordinary operation of the criminal justice system…would undermine the foundations of the rule of law that our first former President described: ‘Respect for its authority, compliance with its laws, [and] acquiescence in its measures’ [are] ‘duties enjoined by the fundamental maxims of true liberty.’”
While all these immunity issues are likely to go up to the Supreme Court for review, the well briefed and decided issues could be taken up rapidly just as the Court decided to act expeditiously in the 2000 Bush v. Gore electoral case. If the decisions, which appear closely reasoned, are affirmed, the trials can proceed to conclusion before Republicans go into their mid-July Convention. Then the issue will be: will individual Republicans come forward to act forcefully in time for their party and the nation to take an off-ramp from Mr. Trump.
Robert P. Wise is a Northsider.
