Courts & Litigation Criminal Justice & the Rule of Law Executive Branch

Taking Trump’s Presidential Immunity Briefing Seriously

Quinta Jurecic, Benjamin Wittes
Monday, October 23, 2023, 2:22 PM

One way or another, the former president’s motion to dismiss will make important new law on a major question of presidential power.

Former President Donald Trump speaking at a conference in Maryland, February 2018. (Gage Skidmore,; CC BY-SA 2.0 DEED,

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To succeed in getting the Jan. 6 indictment against Donald Trump dismissed, Trump’s legal team will have to pull off a remarkable feat: convincing five justices of the Supreme Court to recognize a maximalist version of a hitherto unknown immunity doctrine and then construe the alleged facts in the indictment at a sufficient level of abstraction as to qualify for immunity under that vision.

And that seems unlikely.

But the briefing currently before U.S. District Court Judge Tanya Chutkan on former President Trump’s claim of presidential immunity from criminal prosecution is an important one nonetheless, for at least two distinct reasons.

The first reason is that it places before the courts for the first time the question of whether and under what circumstances a former president can and cannot be held to account in criminal court for crimes committed while he was in office.

This question has never come up before, because few presidents are known to have committed indictable crimes while in office, and no former president has ever been charged for one. While nearly all commentators have assumed that a president could face criminal charges in at least some extreme cases, there is actually no clear law on the point one way or another. So the motion will make important new law on a major question of presidential power. 

The second reason to focus on this motion is that, even if it doesn’t succeed, it is likely subject to interlocutory appeal—that is, appeal while the case is still pending in the district court—and thus could serve to delay the Jan. 6 trial, which is currently scheduled for March of next year. It seems all but certain that, if Judge Chutkan denies Trump’s motion, the former president will appeal the case up to the U.S. Court of Appeals for the D.C. Circuit and from there to the Supreme Court.

Trump filed his motion to dismiss a few weeks back, and the special counsel’s office filed its response on Friday. So at this point, we have a good sense of both sides’ arguments in the matter—though the matter will likely receive more arguments before Chutkan decides it. The bottom line is that to prevail on this motion—that is, to get the case dismissed on this basis—is a real long shot.

But it is not impossible given the composition of the Supreme Court and given the favorable state of some of the background law on presidential immunity. And it is altogether possible that the courts could recognize some lesser conception of presidential immunity and that they might use up valuable preelection time in thinking about the matter.

So it’s worth taking the question of immunity seriously, focusing particularly on the arguments the special counsel has made against it—which are frankly more aggressive than we expected.

Trump’s motion to dismiss seeks to extend the immunity given to presidents in civil cases in the 1982 case of Nixon v. Fitzgerald to the criminal context, arguing that Trump’s actions as charged in the indictment were within the “outer perimeter” of presidential authority and therefore immune not merely from civil damages actions, but from criminal liability as well. What’s more, his legal team attempts to place out of bounds any inquiry into the motives behind his actions—an argument that, if the courts were to accept it, would make it significantly more difficult for the special counsel’s office to show that his conduct was aimed selfishly at illegitimately holding onto office, rather than fulfilling his presidential duties. The basic argument posits that each of the things Trump is alleged to have done involved normal presidential actions: giving public speeches, communicating with the legislators and state officials on matters of public moment, talking to the vice president, and the like. And just as the Supreme Court didn’t look at the legality or propriety of the action for civil purposes in Fitzgerald, it shouldn’t do so here either. If the actions alleged in the indictment fall into categories of things that presidents do as part of their official duties broadly construed, Trump is entitled to immunity for them—much the way a member of Congress is immune from criminal process for anything he or she says on the floor of the House of Representatives or the Senate.

At one point, the motion situates Trump’s public comments on supposed 2020 election fraud as part of a tradition best represented by “George Washington’s Farewell Address and Abraham Lincoln’s Gettysburg Address.” 

In response, the special counsel’s opposition declares flatly: “These things are not alike.”

The government’s response to Trump’s brief takes an apparently aggressive stance in response to this bold claim. This seems a bit surprising at first.

The Justice Department, after all, has a foot in both camps here. It is prosecuting this case and thus obviously thinks Trump’s arguments are wrong and that he is not immune from criminal prosecution. At the same time, the Justice Department is also the guardian of the powers of the presidency and it generally takes views of presidential authority protective of the presidency. In the specific area of presidential susceptibility to criminal prosecution, the department has taken a number of positions in the past that limit the application of criminal law to the president. For example, the department has argued that laws that do not by some clear statement apply to the president generally should not be read as applying to the president. And it has argued that separation of powers concerns counsel toward narrow interpretation of statutes that may impinge on presidential exercise of legitimate Article II powers. 

Hence, it was reasonable to expect the government to tread lightly in response to this motion, much as it did in the Blassingame civil litigation against Trump and others over the events of Jan. 6, in which it was asked to address the question of whether Trump’s Jan. 6 actions were within the four corners of Fitzgerald immunity. In that case, the Justice Department was careful not to articulate a legal line regarding the edges of presidential immunity. It contented itself with arguing that if Trump’s action amounted to incitement, then it enjoyed no protection from Fitzgerald

Here, by contrast, the special counsel takes a more sweeping approach. It argues, first, that the immunity Trump claims does not exist; second, that if the courts recognize any immunity in the criminal context, they should recognize an immunity both narrower and less protective than the absolute immunity recognized in Fitzgerald in the civil context; and, third, even if some analogue to Fitzgerald immunity broadly protects former presidents from prosecution after they leave office, Trump’s alleged conduct lies outside the “outer perimeter” of the presidential role in any event.

The special counsel’s brief goes big on the soaring rhetoric, contrasting the presidency with the unlimited powers of the English king and insisting that immunity along the lines of what Trump describes would violate “the fundamental principle that no one in this country, not even the president, is above the law.” “The implications of the defendant’s unbounded immunity theory,” the special counsel writes, “are startling”: Such reasoning would grant immunity to any president who engages in any kind of chicanery, so long as that leader could assert that those actions had some connection with official duties. The filing doesn’t outright quote Trump’s notorious 2016 statement about “stand[ing] in the middle of Fifth Avenue and shoot[ing] somebody” with no consequences, but it comes close. 

The bulk of the response focuses on this argument that “a former president cannot claim any immunity from federal criminal prosecution.” The word any is doing a lot of heavy lifting here: The special counsel isn’t saying—as, to be honest, we had expected the office would argue—that there exists some core realm of presidential conduct that’s protected from criminal liability but that Trump’s actions in the run-up to Jan. 6 and on the day itself are located outside that realm. Rather, Special Counsel Jack Smith is arguing that former presidents enjoy no criminal immunity at all. 

The special counsel looks to the Founding and the scope of American history to argue that “there has been universal agreement that a former president may be subject to federal criminal prosecution.” Sitting presidents are protected from indictment by long-standing positions of the Justice Department’s Office of Legal Counsel (OLC), he contends. And Fitzgerald, of course, protects both sitting and former presidents from civil liability for official conduct. But, Smith writes, “the existence of both immunities is premised on the availability of criminal liability once a former president is out of office.” The logic of Fitzgerald can’t, as Trump argues, be extended from the civil to the criminal context, because of the “broad public interest in the enforcement of criminal law.” What’s more, the distinction sketched by the Supreme Court in Clinton v. Jones between official conduct (which is immunized under Fitzgerald) and unofficial conduct (which is not) “does not translate into the federal criminal conduct,” the special counsel states. Quoting United States v. Isaacs, Smith writes, “‘[c]riminal conduct is not’—and can never be—‘part of the necessary functions performed by public officials.’”

But having thus come out swinging, the special counsel proceeds to modulate his argument a bit. The absence of overarching, Fitzgerald-style criminal immunity doesn’t, it turns out, mean no immunity whatsoever. 

Even in the absence of some sort of broad immunity, there already exist several mechanisms—both practical and legal—ensuring that former presidents won’t be prosecuted either as a result of Congress criminalizing presidential actions it doesn’t like or as a result of an overly aggressive prosecutor using laws never intended to regulate presidential conduct to go after a former chief executive for legitimate presidential actions. The criminal justice system, Smith writes, has plenty of general protections built in, as a starting matter: “[P]rosecutors adhere to a strict code that prohibits vexatious or abusive prosecutions”; any would-be indictment of a former president must make it past a grand jury, which could reject an abusive attempt at legally harassing an ex-president; and “demanding mens rea standards … and evidentiary limitations” would limit prosecutorial overreach.

When it comes to the law itself, judges “construe statutes applied to a president for conduct during the presidency narrowly ‘[o]ut of respect for the separation of powers and the unique constitutional position of the President,’” Smith argues, quoting Franklin v. Massachusetts. This, too, limits the possibility that criminal law will be applied unfairly to a former president’s legitimate use of executive authority.

And that brings us back to the Office of Legal Counsel. Here, Smith points to a series of OLC memos on the clear statement rule, under which “general statutes must be read as not applying to the President if they do not expressly apply where application would arguably limit the President's constitutional role.” That’s quite expansive reasoning and potentially constrains the application of a great deal of criminal law to legitimate presidential conduct—granting former presidents broad protection from prosecution. But, the special counsel argues, it’s not so broad as to immunize Trump’s conduct here.

The Office of Legal Counsel has also identified a certain category of statute to which the clear statement rule need not be applied at all, because charging a former president with such an offense could raise no conceivable separation of powers question—and because “where from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” In a 1995 OLC memorandum building on a separate 1974 memo by then-Deputy Attorney General Laurence Silberman, the office pointed to bribery as one such offense. So too, the special counsel writes, is Trump’s conduct as charged: “[T]he Constitution grants a president no power to engage in a criminal conspiracy to defeat a federal government function through deceit, corruptly obstruct a congressional proceeding, or violate others’ constitutional right to vote.”

But if this isn’t enough, and if the courts feel that some level of immunity must apply, Smith argues that it should be a more limited immunity than the broad absolute immunity from civil liability established in Fitzgerald—taking into consideration “the strong public interest in the rule of law.” He sketches out a vision of immunity scaled alongside “the asserted presidential authority to act,” analogizing, intriguingly, to the Youngstown framework for understanding presidential power. Actions at the heart of presidential authority might receive immunity “in limited circumstances.” But when the president’s powers are at their “lowest ebb,” immunity will be a harder sell.

In conducting this analysis, courts should be able to inquire into presidential motive, though such inquiry may not be permissible in the context of civil immunity. And, crucially, the evidence shows that Trump’s motives were rotten. Indeed, the special counsel argues, Trump is able to frame his actions as conceivably related to presidential duties only by describing such duties at “a stratospheric level of generality”—such as characterizing his efforts to overturn the election as somehow justified by his presidential obligation to “take care that the laws be faithfully executed.”                          

And even if the courts decide that expansive Fitzgerald-style immunity does indeed apply in the criminal context, the special counsel writes, the case still doesn’t merit dismissal—because “the indictment includes allegations that fall outside the outer perimeter of the president’s powers even under the broadest understanding of that term.” Seeking to usurp an election, it turns out, isn’t an official presidential act.

Like a good trial lawyer, the special counsel here is giving himself a lot of different ways to win. The surprise of the document is that it is aimed chiefly at denying the premise that the president is entitled to any immunity at all.

That said, the more closely one reads it, the less aggressive it seems. A lot of the work that recognizing a certain limited immunity might have done, for example, the special counsel accomplishes by other doctrinal means—pointing out the department’s views that certain statutes should not be applied to the president at all under the clear statement rule. While denying presidential immunity, in other words, the special counsel isn’t denying that the president cannot be criminally prosecuted for legitimate presidential acts that may run afoul of laws of general applicability never intended to affect presidential conduct. And he isn’t denying that the separation of powers limits Congress’s ability to criminalize the conduct of the president’s Article II functions. Rather, Smith’s point seems to be that to the extent the president needs immunity from criminal prosecution for certain purposes, the department is already ensuring that immunity by other means.

So what does this brief tell us about the special counsel’s approach and the Justice Department’s approach more broadly?

For one thing, it tells us that there was no insistence from the department’s Office of Legal Counsel that the special counsel acknowledge the existence of presidential immunity from criminal liability. OLC’s views of presidential authority don’t bind the courts, but they do bind the rest of the executive branch, and it is hard to imagine that this brief could have materialized without some measure of consultation with OLC—or, at least, a close study of OLC opinions on related matters. That the brief reads like a straight advocacy document, not like a document written by lawyers constrained by obligations to a client who has a variety of conflicting interests, suggests that OLC’s views of presidential power may be less of an impediment to aggressive action by special counsel than some of us imagined it might be. If that is the case, it testifies both to the extremity of Trump’s actions after the election and to the difference between OLC under Attorney General William Barr—when the attorney general and the head of the office interpreted the obstruction of justice statute in a fashion that cleared Trump of wrongdoing under it—and the same office under Attorney General Merrick Garland.

If you look closely, you can trace the legacy of the Mueller report elsewhere in the special counsel’s brief. In arguing that a more limited criminal immunity should allow an inquiry into presidential motive, Smith draws a parallel between the mens rea requirements of statutes prohibiting “engaging in certain conduct for a corrupt purpose” and “the president’s Article II duty to ‘take Care that the Laws be faithfully executed’”—meaning that instances of acting for a corrupt purpose will also likely represent violations of the president’s duties under the Take Care Clause, and that immunity will not be merited. This echoes Mueller’s constitutional argument that the obstruction statutes may permissibly apply to presidential conduct facially within the scope of Article II, because the statutory requirement of corrupt intent “parallels the President’s constitutional obligation to ensure the faithful execution of the laws.”

When the Mueller report was released in 2019, this analysis received plenty of criticism, including on the related grounds that Mueller had failed to adequately address OLC’s reasoning on the clear statement rule. This time around, Smith still points to the Take Care Clause, but it’s a much smaller part of his overall argument—in part because he’s able to build in a more involved analysis of the OLC memos. Perhaps some of this reflects Smith’s learning from the mistakes of past special counsels. But it also reflects how Trump’s abuse of his office grew even uglier and more exaggerated from the Russia investigation to Jan. 6, such that Smith has much stronger ground to stand on than Mueller did in cleaving off the conduct at issue here from normal presidential behavior shielded by OLC’s reasoning.

A second point is that Smith’s brief speaks to a certain uncertainty on the part of the special counsel about which direction the courts are likely to go on this matter. Rhetoric aside, the arguments for some degree of immunity are not trivial, and there are at least some justices on the Supreme Court who are apt to find it attractive. While the body of the brief is devoted to arguing against presidential criminal immunity of any kind, and the courts do not normally give the executive branch more power than it seeks, the special counsel clearly recognizes that the courts may prove more Catholic than the Pope on this point and recognize an immunity at Trump’s request that the incumbent executive isn’t asking for.

The brief also reveals what Smith regards as his potential Achilles heel: the possibility that motive or intent would not be a legitimate matter for inquiry in any immunity argument. This is true under Fitzgerald, where the inquiry looks only at whether the action in question was within the powers of the presidency broadly construed, and forbids any examination of whether it was lawful or illegal, well intentioned or a violation of the presidential oath. Here, Smith seems to be saying, the essential point is to keep motive within the appropriate line of inquiry—precisely because so much of the difference between criminal and legitimate presidential conduct hinges on the concededly high prosecutorial burden of showing criminal intent. 

But if Achilles has his tendon, the special counsel also has an ace in the hole: the facts. Smith’s final point, that some of Trump’s actions lie wholly outside of even Fitzgerald protection, operates as a way of telling the courts that the facts in this case speak louder than does the doctrine. Surely, the special counsel is saying, the courts would not interpret the corrupt direction of the president’s campaign staff to cheat in an election as an act warranting the protection of immunity of a government official. It’s a dare. And it’s one Smith seems confident the Supreme Court will not take him up on. 

Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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