In a North West Bylines article in August 2023 we discussed the charges against Donald Trump in this case, one of several legal struggles he finds himself embroiled in. We also discussed some of the legal defences that his lawyers had been suggesting they would deploy. In October 2023, Trump advanced what may be his most credible legal defence yet – namely that he is immune from prosecution for any and all acts he committed during his time as US president.
This is important because this defence is, in legal terminology, dispositive – meaning that, if Trump were to prevail, he would have the right to see the entire DC case against him thrown out and not have to defend himself in front of a jury. The judge presiding in the DC case, Tanya Chutkan, ruled against Trump’s claim of immunity on 1 December 2023 stating that “presidents are not kings” and that Trump is not above the law.
Trump immediately appealed this order. As a dispositive issue, he is entitled to do this instantly rather than having to wait until the end of the trial (an ‘interlocutory appeal‘). His appeal is now pending before the DC Court of Appeals which is obligated to hear it. Being acutely aware of the public interest aspect in having Trump tried well before the November 2024 US presidential election, this court has massively accelerated its normal schedule and will hear oral arguments on the matter on 9 January 2024.
Let’s take a look at the history of claims of presidential immunity in the US and how those who previously advanced such claims fared.
Presidential immunity in 1974: United States v Nixon
In the early hours of Saturday 17 June 1972 a security guard at the Watergate Complex in Washington DC, then being used by the Democratic Party as their campaign headquarters for the 1972 US presidential election, noticed that the doors from the underground parking garage to the building itself had been tampered with, preventing them locking shut. A failure of the intruders’ operational security meant they were caught red-handed. Incriminating evidence was soon uncovered linking them to incumbent president and Republican candidate Richard Nixon’s senior campaign staff. This was the Watergate Scandal.
Nixon tried to deny responsibility for directing the intruders’ actions, but in July 1973 a key aide mentioned in his testimony before the Senate committee investigating the scandal that Nixon was routinely recording all conversations in the Oval Office. Prosecutors demanded that Nixon provide the tapes, but he refused, citing both executive privilege and presidential immunity. Arguing before the US District Court for the District of Columbia, Nixon’s attorney stated:
“The President wants me to argue that he is as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment.”
The District Court denied Nixon’s motion to quash the subpoena for the tapes, and Nixon immediately appealed to the Supreme Court of the US (SCOTUS). During oral arguments before SCOTUS on 8 July 1974, Nixon’s representatives again argued that the matter was an internal executive branch dispute between the president and the special prosecutor appointed to investigate the Watergate Scandal and that, as such, it was not a matter for the courts to adjudicate on.
Nixon also claimed that he had absolute executive privilege to protect communications “between high Government officials and those who advise and assist them in carrying out their duties” and “that the independence of the Executive Branch within its own sphere insulates a president from a judicial subpoena in an ongoing criminal prosecution.”
SCOTUS flat out rejected Nixon’s arguments. Whilst they agreed that the principle of executive privilege did indeed exist, by a margin of 8-0 with one justice recusing himself, they rebuffed Nixon’s claim to an “absolute, unqualified presidential privilege of immunity from judicial process under all circumstances.” A claim of presidential privilege regarding materials subpoenaed for use in a criminal trial, the court held, could not override the needs of the judicial process if this claim was based merely on general claims of an interest in confidentiality rather than, say, exposing military or diplomatic secrets.
Sixteen days after SCOTUS ruled, Nixon resigned.
The limits of presidential immunity: Nixon v Fitzgerald (1982)
Arthur Ernest Fitzgerald was an engineer and senior member of the US Air Force Executive Service. In 1968 he ‘blew the whistle’ in a Congressional testimony regarding an alleged $2.3bn cost overrun with the Lockheed C-5 aircraft project. Nixon ordered Fitzgerald be fired for this when he won the presidency later that year, and Fitzgerald’s post was duly eliminated during a departmental reorganisation. Fitzgerald sued numerous US government officials for wrongful dismissal, including Nixon. Nixon argued that he could not be sued for actions taken while in office. Both the original trial court and the appeals court rejected Nixon’s immunity claim, and the matter found its way once again to SCOTUS.
By a margin of 5-4 SCOTUS overturned the lower courts and agreed that, in this instance, Nixon had immunity from being sued. The court reasoned that the president must be able to carry out his official duties, which may offend the interests of some parties, without fear of liability for civil litigation that might distract him and jeopardise the effective functioning of government. As long as there is Congressional supervision of the president and, therefore, the ultimate remedy of impeachment is available, the president will not be above the law.
The court set the test of absolute presidential immunity extending to “all acts within the outer perimeter of his duties of office”. However, it stressed that the president was not immune from criminal charges arising from his official or unofficial acts whilst in office. This finding was later clarified by a case involving the then President Clinton in 1998 which held that such immunity also did not extend to acts committed by a president before he assumed office.
A claim of civil immunity: Blassingame v Trump (2023)
James Blassingame and Sidney Hemby were US Capitol police officers on duty on the afternoon of 6 January 2021 when an angry mob stormed the Capitol building, having allegedly been incited by Trump telling them to “fight like hell” and “take back [the] country with strength”. Blassingame and Hemby sued Trump for both physical and mental injuries caused by the riot.
Trump invoked the defence of absolute immunity once more, and the case came before the US Court of Appeals for the District of Columbia Circuit after the original trial court rejected Trump’s claim. The court observed that, as ruled in Nixon v Fitzgerald, the president generally enjoys “absolute immunity from civil damages claims predicated on his official acts” in order “to assure that he can fearlessly and impartially discharge the singularly weighty duties of the office”.
US public interest group Constitutional Accountability Center filed an amicus curiae (‘friend of the court’) brief authored by assorted constitutional scholars and legal experts on separation of powers and immunity, in which they argued that Trump’s claim of immunity should fail for two reasons.
Firstly, as established in Nixon v Fitzgerald, that only official acts of the president are covered by immunity, and that this extends only to the “outer perimeter” of the president’s official responsibilities. Inciting a violent protest to further his own private interests (of attempting to retain power after losing the election) fell far beyond the “outer perimeter” of his duties as president.
Secondly, the authors explained how the rationale for courts’ declining to intervene in reviewing a president’s official acts arose from the separation of powers doctrine enshrined in the US Constitution. Granting Trump immunity from actions not within the ‘outer perimeter’ would be to pervert the separation of powers and must necessarily be inapplicable.
The verdict in Blassingame
Largely following this reasoning, the court observed that:
“The President… does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity from damages liability just because he happens to be the President… When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”
Furthermore, the court explained, “When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act. The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”
Most importantly, the decision in Blassingame was reached by the very same court that is scheduled to hear Trump’s arguments for immunity in the Washington DC criminal case on 9 January 2024.
What to expect from Trump’s criminal case appeal
We can be confident that the DC Circuit Court of Appeals will reject Trump’s claim of absolute presidential immunity from criminal charges arising out of his 6 January conduct. The logic of all assembled case law is solid and persuasive, and the US Constitution makes no mention of presidential immunity. But the point, from Trump’s perspective, is not to win but to introduce delay and to push the trial out beyond the 2024 election.
It seems likely that the US legal system is acutely aware of this and is taking steps to neuter this tactic. Although Trump can request an ‘en banc’ hearing before all the judges of the Appeals Court, and ultimately the Supreme Court, neither court is obligated to take the case. Written predictions can look foolish when reviewed after the fact, but I am pinning my colours to the mast here: Trump’s Washington DC criminal trial will still go ahead before the 2024 US presidential election, and he will be found guilty.