Despite claims of presidential immunity by the former president, an appeals court unanimously rejected Trump’s call for immunity from prosecution
Trump’s attempts at avoiding a trial over his attempts to stay in power after the 2020 election have floundered after an appeals court unanimously rejected the former president’s arguments for immunity. The case, which Trump is almost certain to take to the Supreme Court, is another addition to a long list of failed lawsuits by the former president to avoid accountability and demonstrates his flawed legal thinking.
As The Washington Post’s Rachel Weiner explains:
We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the panel of three judges wrote. “Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”
The ruling comes days before the Supreme Court considers another untested question raised by Trump’s candidacy — whether the former president is an insurrectionist barred by the Constitution from returning to the White House because of his actions around January 6th.”
The court rightfully noted that executive authority, while sometimes broad, is not unlimited. Trump and his lawyers conversely argue that if a president is held to the standard he is being held to, any president can face criminal charges after they leave office. This argument is neither convincing nor impressive. Equality before the law isn’t an undesirable outcome.
Firstly, presidential immunity is not an explicit part of the U.S. Constitution. It is not an enumerated right or power under the articles present within said Constitution. Instead, it has been accepted as a form of long-standing legal tradition by the Justice Department (DOJ). According to DOJ policy, current presidents can’t be prosecuted, and Trump is not the current president of the United States.
Trump is not only accused of defrauding the public but also disenfranchising voters. I would be remiss if I didn’t also mention the two additional charges he faces for obstructing an official proceeding. The severity of January 6th, which serves as the basis for these charges, can’t be ignored. The attacks on the peaceful transfer of power for the highest executive office in the nation at a time of immense political polarization threaten the peace and stability of the republic, and therefore, the case carries even more weight in its importance.
Even when facing the issue of retrospective prosecution, Trump’s arguments fall flat as the former president has promised to prosecute President Biden if he were to reclaim the White House in the coming election. If there were reason to believe that the former Presidents Obama and Bush were not acting in accordance with their view of their official duties, then they would have every reason to face prosecution, but thus far, no evidence has been presented in court to argue for their indictment. Trump can’t say the same because organizing an attempt to hold onto power after losing an election is not an official duty of the president.
Even without the hypocrisy of Trump’s potential retrospective prosecution of President Biden, Trump’s claims of immunity are, at their best, imaginary. While there have been genuine questions about the limitations placed on the judiciary regarding its relationship with the presidency, those limitations don’t suggest absolute immunity from checks by the courts.
There have been cases, such as Mississippi v. Jackson (1867), where judicial authority has been limited. However, in such cases as Jackson, the judiciary has consistently held that they are prohibited from interfering with the president’s “…performance of his official duties.” Nothing in such cases suggests that a former president enjoys such immunity nor that a current president is without limitation.
In the case of Nixon v. United States (1974), then-President Nixon was forced to comply with a subpoena from a grand jury seeking tapes related to Watergate. The Court ruled that while presidents have some executive privilege rights regarding foreign policy and military affairs, they are still subject to the “…fundamental demands of due process of law in the fair administration of justice.” Even when facing cases like Nixon v. Fitzgerald (1981), the presidential immunity that presents itself the strongest is narrowly tailored to the president’s official duties according to the Constitution, and as I explained above, holding onto power and obstructing a legal proceeding is not a power the president possesses.
Whether Trump likes it or not, he is subject to the rule of law, and no matter how much he appeals to the court of public opinion, that law must stand. He may attempt to delay until election day to avoid prosecution, but if wiser heads prevail and the Supreme Court holds to the rule of law, he will have to argue his innocence on the facts, not on his presumption of immunity.
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