Trump’s arguments for immunity not as hopeless as some claim

• Former President Donald Trump’s claims of immunity from criminal prosecution will be argued before the U.S. Court of Appeals for the District of Columbia Circuit on Jan. 9, 2024 – on an interlocutory appeal from his trial for election interference.
• His arguments have been rejected by a district court judge, and the Supreme Court has declined to weigh in – for now.
• Commentators have described his immunity arguments as “frivolous” and “absurd.” But such accounts underestimate the arguments’ weight and at times misconstrue them.

A related absolute immunity already exists

• His first line of defense claims that his actions are covered by a constitutional immunity protecting presidents when they act in their official capacity.
• They are saying he can’t be prosecuted for so-called “official acts.” A related immunity has been recognized in the past.
• In 1982, the Supreme Court recognized that presidents have absolute immunity from civil lawsuits for their official actions.
• Nevertheless, it is conceivable that courts would recognize presidential criminal immunity for official acts.

The complication from the impeachment clauses

• But he went on to claim that since he was acquitted – only 57 senators voted to convict him, short of the 67 needed – he was not liable for criminal prosecution.
• The New York Times called it an “even more audacious argument” than his claim of absolute immunity.
• Indeed, impeachment proceedings are very rare, and most eligible offenders never face an impeachment.
• Moreover, as the critics point out, criminal acts may be discovered after the person in question has already left office.

Does acquittal in an impeachment proceeding create or preserve criminal immunity?

• That claim, if upheld, would provide Trump with criminal immunity whether presidents enjoy absolute immunity or not.
• The claim would work only if Trump’s impeachment and his criminal prosecution were based on the same acts – an allegation that is disputed by the special counsel.
• Here, Trump acknowledges that an impeachment conviction removes that protection – but insists that an acquittal does not.

Ofer Raban does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.