Wednesday, March 20, 2024

Trump Argues for Absolute Immunity in SCOTUS Case

Former President Donald Trump filed his brief yesterday in his immunity claim in the January 6 criminal case now before the Supreme Court. As expected, he argued for absolute immunity for a former president from criminal liability for acts within the outer perimeter of the president's responsibilities.

The key points are by now familiar (even if, well, er, novel):

  • Courts can't review acts of the president (going back to cherry-picked language from Marbury v. Madison);
  • The president enjoys absolute immunity from civil liability for acts within the outer perimeter of the office (from Nixon v. Fitzgerald);
  • Therefore, even more so, a former president enjoys absolute immunity from criminal liability for acts within the outer perimeter of the office.

Trump adds that a former president can be prosecuted, but only after impeachment in the House and conviction in the Senate. He says that this absolute immunity is essential to allow a sitting president to act without worry of future criminal prosecution.

(If you want to see a different perspective on these claims by a neutral decisionmaker, here's the D.C. Circuit's ruling.)

Trump adds that even if he's not absolutely immune, the Court should read the criminal statutes in the January 6 indictment as not applying to the president, because they don't contain a clear statement applying to the president. (Trump imports this idea from Franklin v. Massachusetts.)

Just to be clear: Trump's claims are truly extraordinary, and come with chilling implications. Recall that his attorney argued in the D.C. Circuit that a president could order the military to assassinate a political rival with impunity, unless and until that president were impeached by the House and convicted by the Senate. Mercifully, Trump didn't repeat that claim in his briefing at the Supreme Court. But he also didn't disavow it. And his logic inexorably supports it.

Cases and Case Materials, Executive Authority, Executive Privilege, News | Permalink


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