No presidential immunity for personal crimes in “official” clothing

After months of delays, the Supreme Court on Thursday heard former President Donald Trump's argument that he is immune from prosecution for crimes he committed while trying to overturn the results of the 2020 presidential election. The good news is that no one suggested the president was above the law.

But as is often the case at the Supreme Court, the issue will hinge on wordplay. President Trump's lawyer, D. John Sauer, acknowledged that the president could be held criminally liable for “personal” actions, but unless convicted after impeachment, “official” He claimed that he could not be held responsible for his actions. Worse, Sauer argued, if any part of the deal looks like something the president frequently does, the deal must be “official.”

Fortunately, Chief Justice John Roberts was quick to go after him on this issue, asking whether accepting bribes for ambassadorial appointments was “official.” Sauer said the appointment is an official act. He admitted there was no bribery, but argued that the resulting bribery case relating to “official” appointments could not be prosecuted because the evidence was inadmissible. This puzzled the Chief Justice to the point of relief.

Sauer went on to reiterate to Justice Sonia Sotomayor Trump that the president has immunity for killing political opponents. unless impeached and convicted— with an even worse case-killer warning. Sauer argued that normal criminal law, including murder, does not apply to a president acting officially, unless the president is explicitly named. For Sauer, a president who kills his rival without committing a crime cannot be impeached for “high crimes or misdemeanors,” let alone prosecuted.

In support of these extraordinary views, Sauer dragged the courtroom red-hot. Without such absolute immunity, he argued, any president who conducts drone strikes or promotes war would fear prosecution. But why do we do that? No party to this lawsuit argues that it should. In fact, special counsel Michael Dreeben has made it clear that he has no responsibility for these “core” presidential duties and that judges should not waste their time on them.

Trump is accused of engaging in fraud aimed at personal gain rather than official national policy. As Justice Elena Kagan pointed out, he used his “official” position to pressure local officials and the Justice Department to participate in his campaign team's efforts to subvert the election, and to facilitate that effort. will only make things worse.

So far, courts have held that linking the president's day-to-day affairs to essentially personal misconduct does not transform a private matter into a public matter; It needs to be made clear that there is no need to omit it from litigation. Rather than explicitly defining the outer limits of “official” conduct, the court held that the conduct alleged in the indictment against Trump, whether “plausible” or not, falls outside the broadest concept of immunity. It should be made clear. ” within the “rational,” “core,” or “periphery” of official conduct discussed by the judge. Until 2020, no one imagined the scenario we are facing today. Courts should not police themselves over things that may surface tomorrow.

The justices should also resist suggestions that lower courts consider before trial whether the indictment describes activities outside the scope of the president's duties. You should just assume that's the case. These actions, which are said to be part of the president's daily business, including meetings with the Justice Department and local officials, were part of Trump's efforts as a presidential candidate to fraudulently overturn the honest results of the election. If a jury finds these allegations false, it could potentially acquit Trump, but under these allegations there is no reason to bring up the issue twice, causing further delays and perhaps another round of There is a possibility of an appeal.

Best of all, none of this “official” argument is clear from the most dangerous thing President Trump is asking the courts to adopt: criminal liability for “official acts” of any kind after the president's impeachment and conviction. Don't let it cloud what can only happen. This means that if a president can, through threats, bribes, or other means, hope that 33 senators will vote “no” in an impeachment trial, there will be no consequences for even the worst crimes, such as murder. . God help us if Trump gets his way on that one.

Thomas G. Morkauscher He is a former Connecticut Multiple Litigation Judge and former co-chair of the American Bar Association Employee Benefits Committee. He is the author of a new book, Common Flaws: Unnecessary Complexity in Courtrooms and 50 Ways to Reduce It.

The views expressed in this article are the author's own.