Why Donald Trump's Presidential Immunity Claim is Destined to Fail
S E E D E D C O N T E N T
By Ewan Palmer News Reporter
A number of legal experts have suggested that Donald Trump's attempt to dismiss his federal election interference case over claims of presidential immunity will fail.
The former president vowed he will appear on Tuesday at the U.S. Court of Appeals for the D.C. Circuit to hear the start of oral arguments as to whether or not he can cite absolute immunity to fight the charges. The charges were filed under Special Counsel Jack Smith's investigation into alleged criminal attempts to overturn the 2020 Election results and the events that led up to the January 6 attack.
Trump, the frontrunner in the GOP primary, has pleaded not guilty to four charges under Smith's probe, and has claimed the investigation into him is a politically motivated attempt to stop him winning the 2024 election.
The federal trial is currently scheduled for March 4, but it may be delayed as questions as to whether Trump can cite immunity—as the allegations against him relate this time in the White House—need to be answered first. Prosecutors have said committing crimes does not fall under a president's duties, nor can Trump continue to cite absolute immunity now he is no longer in office.
Judge Tanya Chutkan, who is overseeing the federal trial, had previously said Trump cannot cite immunity in the federal election trial in December 2023, a decision that Trump appealed.
Smith's office had tried to fast-track the appeal process by asking the Supreme Court directly the rule on whether Trump can cite immunity in the 2020 election case, rather than going through the lower courts first as protocol. SCOTUS rejected the request from federal prosecutors to rule on the decision, meaning a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit will now hear oral arguments on whether Trump can cite absolute immunity in his defense against the federal charges.
In a recent press briefing hosted by the Democracy 21 campaign group, a number of lawyers and other legal experts predicted that the appeals court will not rule in Trump's favor, and the former president is merely trying to delay the start of his trial by submitting legal arguments and other filings.
Norm Eisen, an attorney who served as special counsel to the House Judiciary Committee during Trump's first impeachment trial, said that if Trump is granted immunity then the upcoming election would act as a right to obtain a "get out of jail free card" to allow the Oval Office to "become the setting for a crime spree."
"It cannot be right that any fig leaf of connection to official duties allows a President to have absolute immunity from criminal prosecution," Eisen said.
"Clearly [Trump is] playing for delay here, because he's hoping to be successful in his pursuit of the White House," Eisen added. "Can we have any doubt that he would seek to pardon himself or simply order the DOJ to drop the case? That is the reason that he's seeking delay."
One-time Trump White House lawyer Ty Cobb, who has since become a vocal critic of the former president, believes the appeals court will rule against Trump as "no man is above the law."
"That is fundamentally the American approach to freedom and governance. It's essential that it be maintained," Cobb said. "Trump's arguments that he acted in connection with his official duties are sadly frivolous... [Trump's] concept of the law, as it applies to the President, uniquely is misguided and without foundation."
George Conway, a lawyer and vocal Trump critic, said that there is nothing in the Constitution's separation of powers clause that Trump can cite to protect himself from prosecution.
"The absolute criminal immunity that Trump seeks is part and parcel of authoritarianism and it is something that only an authoritarian personality like Donald Trump could dare suggest," Conway said. "He wants to be above the law; he wants to be president so he doesn't go to jail."
David Schultz, a professor at the University of Minnesota constitutional law expert, told ABC News that there is "nothing in the text of the Constitution that speaks to immunity in one way or another."
However, Schultz said there is written evidence from Constitution's framers, including Benjamin Franklin and Alexander Hamilton, suggesting they believed absolute immunity cannot be cited once a president has left office.
"We have language from some framers indicating that even if there might have been some immunity while a person was president of the United States, once they've left office there's no immunity and they could be charged with the crime," Schultz said.
Trump's legal team has been contacted for comment via email.
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In a video message posted on Truth Social ahead of the appeals court hearing, Trump said that he was entitled to immunity as he was investigating false claims of voter fraud at the 2020 election while he was still in office.
"I'm entitled to immunity. Every president has immunity, especially one that did the job I did," Trump said. "I did a great job. And I wasn't working for myself, I was working for the country. I wasn't campaigning, the election was long over, I wasn't campaigning. I was looking for voter fraud, something that I have to do under my mandate."
Any decision from the U.S. Court of Appeals for the D.C. Circuit is sure to be appealed by either side, and the Supreme Court could yet still be the one that ultimately decides whether Trump can cite immunity in his federal election case.
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