Courts & Litigation Democracy & Elections Executive Branch

The Insignificance of Trump’s “Immunity From Prosecution” Argument

Marty Lederman
Tuesday, February 27, 2024, 1:27 PM
If and when the Supreme Court decides to hear the case, the stakes will be far less momentous than many observers might assume, because the answer to the immunity question matters very little for Trump’s prosecution.
Donald Trump (Gage Skidmore,; CC BY-SA 2.0 DEED,

Published by The Lawfare Institute
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Any day now, the Supreme Court will decide what to do with Donald Trump’s application for a stay of the lower court proceedings in the federal criminal case against him in the District of Columbia. Technically, Trump’s application asks the Court to stay the mandate the U.S. Court of Appeals for the D.C. Circuit issued in connection with its opinion rejecting Trump’s argument that his criminal trial is barred by “presidential immunity.” If the Supreme Court applied its established doctrinal test, it would deny the stay because Trump can't possibly demonstrate “a fair prospect that a majority of the Court will vote to reverse the judgment below.” Indeed, I’d be surprised if even a single justice on the Court would vote to reverse, because the merits of the immunity argument are so weak, largely for the reasons thoroughly explained by D.C. Circuit Judges Henderson, Pan, and Childs in their per curiam opinion on February 6.

Whatever the Court does with the stay application, however, that isn’t the main event. Trump is asking for that stay, which would delay trial proceedings in the district court, pending his forthcoming petition for a writ of certiorari, which would tee up the merits of the immunity argument for the Supreme Court’s own consideration. Both parties have argued at one time or another that the question is one the Supreme Court should ultimately decide. Trump says so in his application for a stay. And although the Special Counsel’s response to Trump’s stay application argues that the Court should deny a stay if it would deny certiorari, the Special Counsel previously told the Court, in his petition for certiorari before judgment (which the Court denied on Dec. 22, 2023), that the immunity question is “a quintessential example of ‘an important question of federal law that has not been, but should be, settled by this Court’” (quoting Supreme Court Rule 10(c)).

I’m a little dubious, quite honestly, that the question is “important” enough to warrant Supreme Court review, given how straightforward the answer to the question is and how little effect its answer would have on the proceedings against Trump (which I discuss below). A simple denial of certiorari—or, better still, treating the motion as a cert petition and then summarily affirming the court of appeals’ judgment, cf. Purcell v. Gonzalez (2006) (treating an application for injunction relief as a cert petition and summarily reversing)—would signal that the court of appeals got the question right and would avoid the need for the Supreme Court to add another high-profile Trump case to its calendar this term.

Nevertheless, because both parties have argued that the Supreme Court should itself answer the question, it’s more likely the Court will, at some point, grant a petition and set the question for briefing and argument. In his response to Trump’s application, the Special Counsel strongly suggests that the time to do so is now: “[I]f the Court is inclined to grant review,” he writes, “the government respectfully requests that it treat the application [for stay of the mandate] as a petition for a writ of certiorari and grant review … without delay.”

If and when the Court does decide to hear the case, the stakes will be far less momentous than many observers might assume. For one thing, the outcome is fairly certain: Trump’s arguments for immunity border on the frivolous, and it wouldn’t take much work for the Court to dispose of them in short order. As the Special Counsel notes, the court of appeals’ thorough and unanimous rejection of those arguments, together with Trump’s “failure to point to any Founding Era suggestion of such absolute immunity, any former President making such a claim, or even any scholarly commentary positing such immunity,” underscores just “how remote the possibility is that this Court will agree with his unprecedented legal position.” 

Even if the merits weren’t so clear-cut, however, the Court’s adjudication of the immunity question would be fairly insignificant because the answer to the question matters very little for Trump’s prosecution. Trump has argued that if he’s right about “presidential immunity,” it would require the courts to dismiss the indictment in its entirety. That’s not so. Even if the Court were to rule in Trump’s favor (which, again, is highly unlikely), that ruling should affect only one small portion of the Special Counsel’s case against Trump in the District of Columbia. Nor is there a serious risk, contrary to what Jack Goldsmith recently argued here on Lawfare, that the D.C. Circuit’s decision will have a significant “collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.”

* * * 

Trump’s argument is audacious and unprecedented, but it’s not unbounded. For one thing, Trump doesn’t dispute that Congress can prohibit a President from engaging in the fraudulent and obstructionist conduct alleged in the indictment. His “immunity” argument is only that a former president can’t be criminally tried and sanctioned for certain such alleged violations of law if that person hasn’t previously been convicted by the Senate for the same conduct. And even as to that, Trump does not argue that he’s immune from being prosecuted for any and all crimes he might have committed while he was president. He merely argues, instead, that his purported criminal immunity tracks the scope of the civil damages immunity the Court recognized in Nixon v. Fitzgerald, which extends only to conduct a President takes in his or her official capacity. As the Court confirmed in Clinton v. Jones, the Fitzgerald decision “provides no support for an immunity for unofficial conduct,” nor has the Court ever suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”

The line between official and personal capacity conduct that the Court drew in Nixon v. Fitzgerald and in Clinton v. Jones shouldn’t matter here, because the Court’s jurisprudence respecting presidential immunity extends only to civil damages liability for a president’s “official acts in the absence of explicit affirmative action by Congress,” Fitzgerald (emphasis added).  (The Court hasn’t ever had occasion to decide whether Congress can, by statute, authorize civil actions against the President, and it should be careful not to predetermine or presume the answer to that question in this case.) That doctrine doesn’t carry over to the context of this case, which involves a criminal prosecution for offenses established by Congress that limit the scope of the president’s official actions. That’s why Trump will lose on the merits of his immunity argument if and when the Supreme Court adjudicates that question.

Nevertheless, even if Trump were to prevail on his immunity argument, it wouldn’t affect the forthcoming trial very much because, with only one relatively minor exception, there’s no serious argument that Trump was acting in his official capacity as President when he engaged in the conduct charged in the indictment

For starters, all but one of the counts of the indictment allege that Trump conspired with others to violate the law through fraudulent conduct. And, with one discrete exception, Trump’s alleged agreements to commit such fraud were with persons outside the government—John Eastman, Rudy Giuliani, Sidney Powell, Kenneth Chesebro, and (probably) Boris Epshteyn. The principal charge in Count One is that Trump conspired with those five private persons, as well as with Assistant Attorney General Jeffrey Clark (more on him below), to defraud the United States in violation of 18 U.S.C. § 371 “by using dishonesty, fraud, and deceit to impair, obstruct and defeat the lawful federal government function by which the results of the [2020] presidential election [were to be] collected, counted, and certified by the federal government.” Counts Two and Four allege that the same agreement also violated two other federal statutes: 18 U.S.C. § 1512(k), which prohibits conspiring to, inter alia, corruptly obstruct or impede “any official proceeding,” id. § 1512(c)(2), and 18 U.S.C. § 241, which prohibits conspiring to violate persons’ constitutional rights to vote and have their votes counted. (Count Three alleges that Trump himself actually “attempted to, and did,” corruptly obstruct and impede an “official proceeding,” namely, the Jan. 6, 2021 certification of the electoral vote. That non-conspiracy count, too, predominantly alleges conduct that Trump undertook in his personal capacity, in coordination with other private parties.)

It's very hard to see how Trump’s agreements with the five private parties might have been undertaken in his official capacity as President of the United States. To be sure, a President can communicate with nongovernmental actors as part of his or her official duties, and urge them to take certain actions. But even if there are rare cases in which making secret agreements with such outside persons might be deemed official presidential conduct, under no possible understanding of a President’s proper role could entering into an agreement for the private conspirators and the President to defraud the United States (and to corruptly obstruct its proceedings) be deemed an exercise of official presidential duties.

Nor did Trump act in his official capacity when he engaged in the vast majority of what the indictment alleges to be the “acts to effect the object of the conspiracy,” that is, the overt acts. Again, with a single exception I’ll discuss below (regarding Trump’s efforts to misuse the Department of Justice), those alleged acts consisted primarily of making knowingly false communications with persons outside the executive branch in an effort to have them act to change the certification of the electoral vote in Trump’s favor. These communications were made by Trump and his private co-conspirators (predominantly Giuliani and Eastman) to four different audiences:

  • They allegedly tried to use knowingly false claims of election fraud to induce state legislators and election officials to change their states’ election results from Biden to Trump. 
  • They allegedly organized “alternative” slates of electors in seven targeted states won by Biden (Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin) and induced them to purport to cast electoral votes for Trump and then transmit false certificates of such votes to the President of the Senate and to the Archivist.
  • They (especially Trump and Eastman) allegedly used knowingly false claims of election fraud and other means to try to convince or cajole Mike Pence, in his capacity as President of the Senate, to credit or otherwise use those false “alternative” electoral votes, and to take steps to prevent the Joint Session of Congress from counting the legitimate electoral votes for Biden.


  • They (that is, Trump, Eastman, and Giuliani) allegedly used false claims of election fraud to spur and direct the crowd gathered at the Ellipse on Jan. 6 to march to the Capitol in order to obstruct the electoral vote certification, including by pressuring Pence to postpone the count.

(The indictment also alleges that on the evening of Jan. 6, Giuliani called members of Congress to urge them, based on false claims of election fraud, to delay the electoral vote certification. It further alleges that Trump himself tried to reach two Senators, but apparently he was unsuccessful in doing so.)

When those actions are “viewed objectively and in context,” as they would have to be for purposes of the Nixon v. Fitzgerald presidential immunity inquiry (see Blassingame v. Trump (D.C. Cir. 2023)), there’s no plausible case for concluding that Trump was acting in his official capacity when he engaged in them.

For starters, it’s significant that all of the acts were “unrelated to any of [Trump’s] official duties as President of the United States.” Nor did Trump and his co-conspirators attempt to use any presidential (or other executive branch) authorities or resources to accomplish their objectives. Indeed, there’s no reason to believe Trump’s actions would have been any different if he had been a first-time candidate who hadn’t yet taken office as President. This is (mostly) not a case, in other words, like Richard Nixon’s attempted abuse of the powers of the FBI and CIA against his political rivals; like President Truman’s efforts to have the Commerce Department seize steel mills; or like Nixon’s actions to have the Air Force remove Ernest Fitzgerald from his position in Nixon v. Fitzgerald itself. In all three of those cases, the President’s actions might have been unlawful, but the President undertook them in his official capacity, in the exercise of his Article II authority to direct actions of executive agencies. By contrast, Trump and his private co-conspirators did not plan to use the tools or authorities of Trump’s office or the executive branch to accomplish the ends of the agreement—and they didn’t do so.

These characteristics of the alleged overt acts do not, in and of themselves, necessarily mean that Trump wasn’t acting in his official capacity. Nor was Trump necessarily acting in his private capacity just because he took some of the actions to influence how other governmental actors outside the executive branch—such as officials in Georgia and Mike Pence in his role as President of the Senate—would exercise their own functions. See Blassingame, 87 F.4th at 24-25. And the mere fact that Trump was motivated by a desire to be re-elected likewise is not determinative of the capacity question, because a President does many things in his or her official capacity in hopes that they will incidentally make re-election more likely, see id. at 22 (“the inquiry does not consist of ‘[t]rying to identify speech that would benefit a president politically’”). For example, a President can act in his or her official capacity by urging members of Congress to vote for a particular bill that the President recommended, or by urging the Vice President to break a Senate tie to confirm one of the President’s nominees, even if the President is subjectively motivated, at least in part, by electoral considerations.

Even so, the fact that Trump’s communications were unrelated to presidential duties and did not involve the use of any executive branch powers or resources makes it far more likely that Trump performed those acts in his personal capacity. And the evidence as a whole, viewed objectively, compels that conclusion, as the D.C. Circuit recently explained: “[W]hen a President’s actions viewed objectively and in context may reasonably be understood only as re-election campaign activity, a court not only may, but must deny immunity.” That’s this case.

Most importantly, the conspirators’ overt acts (including Trump’s) allegedly were designed specifically and directly to effect Trump’s designation as winner of the 2020 election, rather than to do something on behalf of the nation (e.g., recommend Fifteenth Amendment enforcement legislation or amendments to the Electoral Count Act) that would only incidentally influence the outcomes of future elections. As the D.C. Circuit held in Blassingame, “[w]hen a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act,” and “[t]he Office of the Presidency as an institution is agnostic about who will occupy it next.” Therefore, efforts specifically designed “to gain that office,” as these obviously were, are “not … official act[s] of the office.” To the contrary: “[A]n incumbent President’s interests in winning re-election have the same purely private character as those of his challengers—i.e., ‘substantial personal interests as a candidate’ to attain (or retain) the office.” If Joe Biden had performed precisely the same functions—had he entered into the same conspiracies with nongovernmental actors to perform the same overt acts for the same purposes, something he could have done despite not holding the office—he plainly wouldn’t be entitled to immunity from liability or from prosecution. Hence, neither is Donald Trump. (See id., 874 F.4th at 18-19, for more on why a “pro-incumbent imbalance” would be improper in such cases.)

It’s easiest to see this with respect to the conspirators’ efforts to organize fraudulent electoral slates and cause them to transmit false certificates to Congress. That obviously was not something done by anyone acting on behalf of the U.S. government. Indeed, it was done primarily by private attorneys and campaign staff.

Likewise with respect to the conspirators’ alleged efforts to have state legislators and officials change the outcomes of their states’ votes: Those efforts, too, were spearheaded by private parties (such as Giuliani and Eastman) who represented Trump in his personal capacity. And the conspirators didn’t devote themselves to an effort to stamp out all fraud in any way associated with the nationwide 2020 elections, or any other objective for the benefit of the nation as whole: As pages 9-21 of the indictment recount in detail, they focused instead exclusively on changing a particular number of votes, or electoral slates, in particular states, in a manner that would alter the outcome of one particular election—the presidential election—to Trump’s advantage. In Georgia, for instance, Trump signed a verification in a suit against the Governor in which he personally affirmed false election fraud allegations. And then he explained to Georgia Secretary of State Brad Raffensperger that he needed to “find” 11,780 votes.  See also State v. Meadows, 88 F.4th 1331, 1337 (11th Cir. 2023) (recounting Raffensperger’s testimony that he “felt” the Trump shakedown phone call “was a campaign call” because the attorneys on the other end “were Trump campaign lawyers”); id. at 1349 (recountings Mark Meadows’ testimony that a meeting with Michigan state officials mostly involved discussion of the purported fraud in the 2020 election and was related to “President Trump[’s] ... personal interest in the outcome of the election in Michigan”).

Similarly, the conspirators’ exhortations to the crowd assembled at the Ellipse on January 6—for them to bring pressure to bear on Pence and members of Congress—also were clearly made on behalf of Trump in his personal capacity. That rally was, in effect, a continuation of Trump’s campaign activity. It had none of the trappings of an official White House or government event. Indeed, the principal speakers other than Trump were, again, Giuliani and Eastman—not government officials. And Trump’s own speech, like Giuliani's and Eastman's, was expressly and repeatedly framed in terms of the fate of Trump and his supporters in the 2020 election, and other expressly partisan concerns.  See Blassingame, 87 F.4th at 22 (“That is not to say that the content of a speech will invariably be entirely off-limits. In certain circumstances, for instance, it could serve to confirm what an objective assessment of the context makes evident.”).[1]

Finally, there are the conspirators’ communications with Mike Pence. It would certainly be unusual, to say the least, for any executive branch officials to inveigh upon the Vice President about how to perform his role as President of the Senate when chairing the Joint Session of Congress for the counting of electoral votes; the executive branch simply doesn’t have any interest in how that count is made. That’s true in this case, too. The communications to Pence were designed specifically and expressly to serve Trump’s re-election efforts, rather than to advance any national interest. See generally paragraphs 89-97 of the indictment; see also paragraph 122 (alleging that Eastman’s email to Pence’s counsel at 11:44 p.m. on January 6 expressly advocated that Pence consider committing a “relatively minor violation” of the Electoral Count Act). And again, Eastman’s prominent role in the meetings with Pence and his staff, and the alleged deliberate exclusion of representatives of the White House counsel’s office in at least some such meetings, are telling indicia of private-capacity conduct, as are Trump’s own remarks in a decidedly partisan, election-outcome-related vein (e.g., “We won every state.”).

On top of all that, Trump himself has effectively acknowledged that he undertook “his post-election efforts to alter the declared results in his favor …in his personal capacity as presidential candidate, not in his official capacity as sitting President.”  “That is evident,” the Blassingame court wrote, in Trump’s “effort to intervene in the Supreme Court’s consideration of a post-election lawsuit [Texas v. Pennsylvania, No. 22O155 (2020)] challenging the administration of the election in various battleground states. He expressly filed his motion in the Supreme Court ‘in his personal capacity as candidate for re-election to the office of President’ rather than in his official capacity as sitting President. And he grounded his claimed right to intervene in the case in his ‘unique and substantial personal interests as a candidate for re-election to the Office of President’ rather than in any official interest in exercising the office’s duties.”

So, too, with respect to the conduct alleged in the D.D.C. indictment, with respect to which Trump has made a concession analogous to the one discussed in Blassingame. Trump filed a separate motion in the district court (which Judge Chutkan denied) in which he argued that his conduct alleged in the indictment may not be made the basis for criminal charges because it consisted of speech protected by the First Amendment. The First Amendment, however, does not protect a government official’s speech in his or her official capacity, see Garcetti v. Ceballos, 547 U.S. at 421-22—it only protects speech in the individual’s private capacity.  Cf. CBS v. Democratic Nat’l Comm., 412 U.S. at 139 (Stewart, J. concurring) (“The First Amendment protects the press from governmental interference, it confers no analogous protection on the Government.”). Therefore, Trump has already effectively acknowledged, in this very case, that he undertook the alleged conduct in his personal capacity.

* * *

Trump’s immunity argument would, however, implicate one portion of the indictment, assuming the Nixon v. Fitzgerald official/personal capacity distinction applied.  Paragraphs 10(c) and 70-85 allege that Trump conspired with an Assistant Attorney General—obviously Jeffrey Clark, though the indictment doesn’t name him:

to use the power and authority of the Justice Department to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’ legislatures to convene to create the opportunity to choose the fraudulent electors over the legitimate electors. (Emphasis added.)

The grand jury has included this “official conduct” Trump-Clark agreement as one aspect of all three conspiracy charges, in Counts One, Two, and Four. The indictment also alleges that Trump’s efforts in late December 2020 “to use the Justice Department to make knowingly false claims of election fraud to officials in the targeted states through a formal letter under the Acting Attorney General’s signature, thus giving the Defendant’s lies the backing of the federal government and attempting to improperly influence the targeted states to replace legitimate Biden electors with the Defendant’s,” were a relatively small part of his attempt to obstruct the proceeding in the joint session of Congress at which the electoral votes were counted, which forms part of the substantive § 1512(c)(2) charge in Count Three.

Like the Nixon and Truman examples I mentioned above, Trump’s alleged arrangement with Clark “to use the power and authority of the Justice Department” undoubtedly describes conduct undertaken in Trump’s official capacity as President. Therefore if Trump’s immunity argument were valid, the government couldn’t convict him for these violations of criminal law, and perhaps the government would also be barred from even putting Trump on trial with respect to that episode (although that’s not clearly established in a case, such as this one, in which the former President would be subject to a trial, in any event, for an alleged broader conspiracy of which the official conduct was just one part).

Nevertheless, the important point to emphasize here is that the Trump-Clark endeavor is relatively small potatoes in the context of the much broader conspiracies alleged in the indictment. Therefore, if the Supreme Court chooses to decide the immunity question before trial, both the Justices and the public ought to keep in mind that the answer to that question will affect only a small, discrete part of the indictment.

* * *

A couple of weeks ago, Jack Goldsmith wrote on Lawfare that although he agrees with the court of appeals that Trump isn’t immune from prosecution for his alleged criminal conduct, the Supreme Court nevertheless should review the D.C. Circuit decision not only for the reason offered by the parties, but also because the D.C. Circuit’s per curiam opinion “contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.”

I don’t think that’s right.

As I explained above, Trump’s immunity argument is not that Congress can’t prohibit the President from engaging in the types of fraud and obstruction of government proceedings that the indictment alleges—even in his official capacity. His argument is, instead, that a President who violates those statutes can’t be held criminally culpable. In this respect, the immunity argument here is akin to other, more familiar immunity claims, including the one at issue in Nixon v. Fitzgerald, as well as claims of “qualified immunity” of law enforcement officers. In each of those contexts, the starting assumption is that the person in question acted unlawfully and that the statute prohibiting the conduct is constitutional—the only question at issue is whether certain remedies or sanctions for the violation are off-limits. So, too, here.

There’s no constitutional concern in applying the statutory prohibitions at issue here to a President—even to official presidential conduct. (Nor has Jack suggested otherwise.) Take, for example, the sole part of the indictment that describes such official conduct: Trump’s alleged efforts to have the Department of Justice falsely inform Georgia officials that there was evidence of election fraud in order to induce those officials to switch Georgia’s electoral votes from Biden to Trump. Such efforts wouldn’t be within the president’s lawful authority to begin with—just as with Nixon’s efforts to misuse the CIA to harm his political rivals, it would be a violation of his “take Care” duty. And, in any event, there’s no question that Congress may prohibit the President from misusing his office in that way, either with a statute directed specifically to the President or one that’s generally applicable: The Constitution does not prevent Congress from prohibiting the President from conspiring to defraud the United States (18 U.S.C. § 371), from conspiring to corruptly obstruct or impede “any official proceeding” (§§ 1512(c)(2), 1512(k)), or from conspiring to violate individuals’ rights to vote and have their votes counted (18 U.S.C. § 241), even in a particular case where the President abuses his Article II authorities (e.g., his power to superintended the Department of Justice) to accomplish those unlawful objectives of the conspiracy. (For a fuller explanation of this point as applied to § 1512, see pages 175-178 of Volume II of the Mueller report.) 

Jack assumes that Trump “can and will argue at trial that at least some of the statutes he allegedly violated do not apply to him because they ‘possibly conflict’ with the president’s constitutional prerogatives.” I suppose it’s possible Trump might make such arguments later—and, if he does, Judge Chutkan could address those arguments separate and apart from the issue of presidential immunity from criminal culpability. It’s telling, however, that Trump hasn’t made those arguments yet, even though he’s already moved to dismiss the charges on numerous statutory and constitutional grounds. Presumably Trump hasn’t argued that the fraud and obstruction statutes don’t apply to the President because such an argument would be even more untenable than his immunity argument.

This case therefore is fundamentally different from the questions addressed in the Office of Legal Counsel (OLC) opinions Jack discusses, all of which involved statutes that would raise serious constitutional questions if they were applied to limit what would otherwise be the President’s otherwise lawful exercise of his or her constitutional authorities.[2]           

Jack’s concern about the D.C. Circuit opinion is based primarily on a single infelicitously phrased sentence. In one section of its opinion, the court of appeals addressed and rejected Trump’s audacious argument that Marbury v. Madison established a principle that courts can never “examine” the legality of a President’s official acts, even after the President leaves office. There are many reasons why that argument is wrong. Most fundamentally, however, it’s based upon a misreading of what Chief Justice John Marshall was discussing in the relevant passage of Marbury. As the court of appeals noted, Marshall was merely expressing the simple and uncontroversial point that where the law affords an executive official (including the President) unbounded discretion to act, there’s no basis for a court to enjoin such conduct. (Today, in an Administrative Procedure Act challenge, we’d say that such a case is nonjusticiable because the action is “committed to agency discretion by law” and thus there’s “no law to apply.”) In this case, by contrast, the President did not have unbounded discretion to defraud the United States or to corruptly interfere with the January 6 count of electoral votes. As the court of appeals noted, the President’s discretion to do so was properly constrained by law, including by the criminal statutes that Trump is alleged to have violated.

In the course of making that argument, the D.C. Circuit panel wrote that “former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion” (emphasis added). Jack fears that this statement could be understood to suggest that the enactment of a “generally applicable” criminal statute itself automatically limits the President’s discretion to perform his or her Article II duties, even if such a limitation would be unconstitutional or would raise such significant constitutional concerns that it would be fair to construe the statute not to apply to the President. Such reasoning, he writes, “is undisciplined and sweeps broadly”—so much so that its “implications will unduly constrain and chill presidents in office because they will be exposed to potentially much broader (and uncertain) criminal exposure in carrying out everyday Article II acts.” 

I don’t think there’s any chance, however, that a current or future President will read the D.C. Circuit’s opinion to suggest anything of the sort. The court obviously did not mean to suggest, let alone to hold, that as long as Congress chooses to impose criminal sanctions on some “generally applicable” activity, the statute thereby necessarily applies to the President and automatically is constitutional as applied to the President. If that were a conceivable reading of the court’s statement, then surely the Justice Department wouldn’t have cited it favorably in its filing in the Supreme Court responding to Trump’s stay application—but it did (see footnote 14). The better reading of the court’s statement is simply that when generally applicable criminal statutes do apply to the President—as it is uncontested that the statutes here do, and when such statutes are constitutional as applied—as these are—then such laws limit the President’s discretion to act, even in his or her official capacity, and courts (or juries) accordingly can “examine” the legality of the President’s conduct. Understood in that way, the court of appeals’ statement raises no constitutional issues of concern.

* * *

As I noted at the top of this article, it would be perfectly appropriate for the Supreme Court to resolve Trump’s immunity claim by treating his application as a petition for certiorari and either denying it or summarily affirming the court of appeals. If, however, the Court decides to resolve the question after full briefing and argument, the Justices and the public should keep in mind that the stakes of the question are extremely narrow when it comes to Trump’s criminal case.



[1] For example (and this is only a small sample):

All of us here today do not want to see our election victory stolen by emboldened radical-left Democrats, which is what they're doing. 

Today I will lay out just some of the evidence proving that we won this election and we won it by a landslide.

Rudy, you did a great job. He’s got guts, unlike a lot of people in the Republican Party.

If Mike Pence does the right thing, we win the election.

All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.

Many of the Republicans, I helped them get in, I helped them get elected. I helped Mitch [McConnell] get elected. I helped.

And you have to get your people to fight. And if they don’t fight, we have to primary the hell out of the ones that don’t fight. You primary them. We’re going to. We’re going to let you know who they are.

Republicans are constantly fighting like a boxer with his hands tied behind his back. … We're going to have to fight much harder.

Look at the big leads we had, right. Even though the press said we would lose Wisconsin by 17 points. Even though the press said, Ohio’s going to be close, we set a record; Florida’s going to be close, we set a record; Texas is going to be close, Texas is going to be close, we set a record. And we set a record with Hispanic, with the Black community, we set a record with everybody.

With only three of the seven states in question, we win the presidency of the United States.

We won in a landslide.

The Republicans have to get tougher. You’re not going to have a Republican Party if you don’t get tougher.

In Wisconsin, corrupt Democrat-run cities deployed more than 500 illegal, unmanned, unsecured drop boxes, which collected a minimum of 91,000 unlawful votes. It was razor-thin, the loss. This one thing alone is much more than we would need.]

[2]  Jack invokes a statement in an OLC opinion that “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.” As I explained in an earlier post, there is no such established canon, or “clear statement rule.” The Supreme Court has never adopted it, and in landmark cases implicating the President’s ability to perform his constitutional role (such as U.S. v. Nixon and Clinton v. Jones), where one would have expected the Court to apply such a rule of construction, there’s nary a mention of it. Moreover, such a rule would have dramatic effects on many statutes that plainly regulate the President, even though Congress hasn’t said so “expressly” in the statute (e.g., the bribery and torture statutes).

In any event, the 1995 OLC opinion itself acknowledged that the alleged “clear statement principle” “does not apply with respect to a statute that raises no separation of powers questions were it to be applied to the President.” 19 Op. O.L.C. at 357 n.11. And that’s true of the statutes at issue here, which only prohibit the President (or anyone else) from acting or conspiring to defraud the United States, to corruptly interfere with U.S. proceedings, and to violate the right to vote. Such statutes can’t be applied to “limit the POTUS’s constitutional role,” because such conduct isn’t properly within that role to begin with. As David Pozen and I have discussed, even if there were no such statutes, the presidential oath and the President’s constitutional duty to take care that the laws are faithfully executed prohibit the President from using Article II powers for purely self-interested ends or to otherwise accomplish the fraudulent and corrupt objectives of the conspiracies alleged in the indictment. It follows a fortiori that a statute prohibiting such a misuse of office isn’t constitutionally problematic. See also Volume II of the Mueller Report at 8 (emphasizing that the “corruptly” standard in § 1512(c)(2) actually “aligns with the President’s constitutional duty to faithfully execute the laws”).

Marty Lederman is a professor at the Georgetown University Law Center who teaches and writes on constitutional law and related topics.

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