The foundation of Trump’s motion is that there should be absolute immunity from criminal prosecution for former Presidents related to their official duties while in office. Smith’s Opposition argues that any such prohibition would run contrary to the axiomatic principle that “no man is above the law.”
Here is the problem – the law as established in the 230-plus years since the adoption of the Constitution provides no clear answer to this question. No subsequent administration has ever prosecuted the leader of the opposition political party who occupied the Office of the Presidency prior to that Administration. That is something that tends to only happen in Banana Republics, to prevent the predecessor from attempting to regain office in the next scheduled election.
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So, regardless of what either side claims in their pleadings, the question of immunity of a former President from criminal prosecution for actions taken while in office is novel and presents an “issue of first impression” for the Courts to resolve. Any claim to the contrary is legally ignorant or expresses a bias as to what the outcome should be. The question has never been answered, because it has never before been an issue that needed an answer.
So, which side has the better argument as to whether such an immunity should be found to exist?
Smith has said that “no man is above the law” – and that’s just about it. That might seem a bit flip on my part, but in an Opposition that has 42 pages of “argument,” I count that phrase being used six times in the first nine pages alone.
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What Trump argues is that the reasons for giving a former President absolute immunity from civil damage lawsuits apply equally in answering the question as to whether a former President should have immunity from criminal prosecution. The Supreme Court did say in
Fitzgerald that the public interest in allowing civil damage suits is not as significant as the public interest in criminal prosecutions, such that the societal costs of granting such immunity – individuals in the future would not be able to sue ex-Presidents for money -- does not outweigh the benefits of granting such immunity.
“The President's unique status under the Constitution distinguishes him from other executive officials. Because of the singular importance of the President's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government…. a President must concern himself with matters likely to "arouse the most intense feelings." Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office…. This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. Nor can the sheer prominence of the President's office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. [FN omitted] Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”
The Court did say that the public has a greater interest in criminal prosecutions than in civil damages lawsuits, and that fact played a role in not allowing Fitzgerald to pursue his case against Nixon personally. But the same interests in granting immunity – laid out in the text above – applies in both situations, and the Supreme Court did not suggest that the case for immunity would be less compelling if the issue before it involved a criminal prosecution.
There are now state prosecutors who campaigned for their offices on a pledge to “Get Trump.” Two in New York and one in Georgia have brought civil and criminal cases against him – one involving events and actions taking place while he was President.
A federal Special Counsel, on behalf of the Justice Department, has crafted novel and legally suspect theories of criminality never before employed as part of two cases in different federal courts. The aura of criminality around the leader of the political opposition – and likely nominee for the Office of President in the 2024 election -- has been fabricated by a grand jury process involving the one-sided presentation of “evidence” and legal argument behind closed doors, with no exculpatory or contradictory evidence being required to be presented.
We now have the specter of a “gag order” – with a threat of detention if violated – limiting that candidate’s ability to speak to the electorate on the campaign trail about the charges against him, those leveling accusations of criminal conduct, and the governmental actors using the levers of government authority in a manner that interferes with the electoral process. This is all taking place for the first time in our history, with the candidate now rising in the polls -- potentially as a backlash against what is taking place.
The harm this creates is that in the future, while in office and executing his/her duties, Presidents will now need to consider the possibility that after leaving office some politically motivated state or federal prosecutor will use the exercise of Presidential authority as a basis to fabricate a politically motivated criminal case. Entertaining such considerations in real time is now a necessity, not an abstraction.
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This could create a “chilling effect” on the willingness of future Presidents to take bold action of a kind often involved in Presidential decision-making. Having the protection of immunity would eliminate such concerns, which is exactly the calculation adopted by the Supreme Court in
Fitzgerald.
There was no textual basis in the Constitution or in the common law for finding such immunity to exist in
Fitzgerald. The same situation is now present in
U.S. v. Trump, and it is of no consequence that Smith shouts from the rooftop of the federal courthouse in Washington D.C. that there is no historical basis to afford former President Trump immunity here.
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