Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

 

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).