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

The Trump Defense, Part II: The Presidential Immunity Gambit

Saraphin Dhanani, Benjamin Wittes
Friday, September 15, 2023, 12:39 PM
An evaluation of Trump’s argument for presidential immunity in the Jan. 6 case.
Former President Donald Trump at a press conference in Seoul, June 30, 2019. (Trump White House Archive,; Public Domain,

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Any day now, former President Trump is going to file a motion in U.S. District Judge Tanya Chutkan’s courtroom to dismiss the Jan. 6 case against him based on some theory of presidential immunity.

We know this not because of some clairvoyance on our parts but because his attorney, John Lauro, has said so directly. On Meet the Press a few weeks back, he declared that “[e]verything that President Trump did was while he was in office as president. He is now immune from prosecution for acts that he takes in connection with those policy decisions, and the Biden administration has not addressed that.”

And in open court on Aug. 28, he informed Judge Chutkan that the Trump defense plans to file “a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case in light of the fact that … the indictment essentially indicts President Trump for being President Trump and faithfully executing the laws and executing on his Take Care obligations.”

In a previous article, we looked at Trump’s other likely defenses—as teased by Lauro—but reserved his executive immunity defenses for separate treatment. We broke these out both because the other defenses are all thematically linked—that is, as we argued, they operate most effectively in combination with one another—and because they are all essentially jury questions.

By contrast, the executive immunity questions don’t really interact with the other defenses; they stand alone. And importantly, they involve primarily questions of law, not fact. That is, they will give rise to a motion to dismiss, which—if successful—will make the case go away and if unsuccessful will not be available as a means of casting reasonable doubt as to Trump’s guilt in the minds of jurors. 

Lauro has given less information about his planned presidential immunity argument than he has about his other defenses, so our ability to assess it at this stage is a little bit more limited. That said, both from what he said on television and in court and from examining the history of presidential immunity claims, it is possible to piece together the contours of the likely arguments. 

The bottom line is that this defense is a bit of a moon shot for Trump, but it’s not a crazy moon shot given two important factors. The first is the composition of the current Supreme Court, which Trump’s lawyers may reasonably regard as a friendly forum for expansive arguments regarding presidential immunity. The second factor is an obscure feature of the law of interlocutory appeals in criminal cases, which—irrespective of the merits of the matter—may allow Trump to use this issue to create a substantial delay in the Jan. 6 trial. Given that this trial is currently scheduled for March 2024, the middle of an election year, that latter factor alone makes this line of defense worth considering seriously.

Let’s start with the basic reason this line of defense is a moon shot: There is no doctrine of immunity for former presidents for criminal activity undertaken while they were in office.

To the contrary, the Constitution is explicit that even an impeached former president, notwithstanding having been tried by the Senate, shall “be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The Supreme Court, to be sure, held in the case of Nixon v. Fitzgerald that “[i]n view of the special nature of the President’s constitutional office and functions, we think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” But this holding was limited to civil lawsuits for damages, not criminal matters. Similarly, the long-standing Office of Legal Counsel view that a sitting president is not subject to criminal process expressly distinguishes the sitting president’s temporary immunity while in office from a former president’s potential exposure.

So what then is Lauro talking about when he refers to Trump being “now immune from prosecution for acts that he takes in connection with those policy decisions”? The answer very likely involves extending Fitzgerald-type immunity from the civil context to the criminal context.

The argument would go something like this: The Supreme Court has held that a former president has absolute immunity for civil damage actions for anything he did within the outer perimeter of the bounds of his powers while in office. Such protection would be meaningless if he were potentially criminally exposed for the same conduct. Hence, Fitzgerald must imply immunity in the criminal context for the same broad spectrum of conduct it shields in the civil context. 

One of the dissenters in Fitzgerald noted this specifically. In his dissent in Fitzgerald, Justice Byron White wrote: “The Court intimates that its decision is grounded in the Constitution. If that is the case, Congress cannot provide a remedy against Presidential misconduct, and the criminal laws of the United States are wholly inapplicable to the President.”

In this sense, the argument would be very similar to the Supremacy Clause immunity arguments Mark Meadows is making—and Trump is likely to make—in the context of the Fulton County case in Georgia. There the argument, firmly rooted in precedent, is that the State of Georgia cannot criminalize the conduct of the federal presidency, so if Meadows (and Trump) were acting within the four corners of their federal offices, they are immune from state charges.

Here the argument would be essentially the same, only reframed as a separation of powers matter: Congress cannot criminalize the conduct of the presidency either, so if the alleged conduct is within the outer perimeter of the presidential function, the presidency must carry a measure of immunity.

That the presidency carries some immunity is not an extravagant position at all. Congress presumably could not, for example, make it a crime to carry out the routine functions of the office. Nor could a federal prosecutor indict a former president for some technical violation of a federal law arising out of activity authorized by Article II of the Constitution.

But there are a few glaring problems with a motion to dismiss based on the idea of absolute presidential immunity in the criminal context, the first of which is that as intuitive as the idea of some presidential immunity may be, the doctrine still does not exist, and the parameters of it thus remain wholly undefined.

The main reason the doctrine is constitutional vaporware is that no former president has ever been charged with a crime arising out of his time in office, so there has never been occasion to test the extent to which the separation of powers shields presidents from prosecution for matters connected to their behavior in office. There has also never been occasion to ask, to the extent that such immunity does protect former presidents, how broadly and comprehensively it does so.

A second major problem for Trump is the same one that afflicts the Supremacy Clause immunity argument in Georgia: Much of the conduct alleged in the indictment is plausibly understood as within the “outer perimeter” of the presidential office only if one defines the outer perimeter as exceptionally capacious. After all, Trump here is alleged to have pressured state and federal officials to violate their oaths of office by miscounting state popular and electoral votes; he is alleged to have exploited a riot to try to get Congress to stop the electoral vote count; and he is alleged to have done all of this for purposes of fraud and depriving people of the right to have their votes counted. None of this is obviously within the presidential function.

Even in the civil context, the courts have not so far been sympathetic to the notion that presidential immunity covers such conduct. In the Blassingame case, a civil suit arising out of Jan. 6, Trump argued that his tweets leading up to that day, his rally speech on Jan. 6, and his failure to act once the Capitol was breached fell into “two presidential ‘functions’”: (a) his Article II duty to “take Care that the Laws be faithfully executed,” and (b) “speaking on matters of public concern.”

But U.S. District Judge Amit Mehta, in response, held that absolute immunity under Fitzgerald did not apply to Trump in this context. With regard to Trump’s first argument that he was operating within his Article II “Take Care” authority, Mehta wrote that the provision did “not confer limitless presidential authority or the authority to encroach on the powers vested in the co-equal branches of government.” He continued:

President Trump cites no constitutional provision or federal statute that grants or vests in the President (or the Executive Branch) any power or duty with respect to the Certification of the Electoral College vote, at least in the manner in which he conceives it. That is because there is none. … Nor does he identify any authority that would support his assertion that merely exhorting non-Executive Branch officials to act in a certain way is a responsibility within the scope of the Take Care Clause. … The President’s Take Care Clause duty … does not extend to government officials over whom he has no power or control. … [T]he Vice President, acting as President of the Senate, and members of Congress had constitutionally and statutorily prescribed duties to carry out the Certification. Their actions are those of a co-equal branch, not subject to Executive Branch control. President Trump's advocacy of the scope of their duties and how they should be performed therefore falls outside even the expansive Take Care Clause.

With regard to Trump’s second argument that his speech was on a matter of public concern and therefore subject to absolute immunity, Mehta held that while speech “is unquestionably a critical function of the presidency,” speech that is “uttered in performance of [un]official acts” or “expressed in some … unofficial capacity” are not insulated. Mehta concluded that “Trump’s tweets leading up to the January 6 Rally—without delving into the motivation behind them” and the rally speech itself, “reflect an electoral purpose, not speech in furtherance of any official duty.”

Mehta’s decision has been on appeal at the D.C. Circuit since July 2022. The court heard oral arguments in December, and since then, the Department of Justice has weighed in on the case, stating that "a President’s speech on a matter of public concern is not protected by absolute immunity if it constitutes incitement to imminent private violence.” This is the first time the department has responded to Trump’s presidential immunity arguments related to Jan. 6.

One entity that, unlike the federal courts, has done a lot of thinking about the parameters of Congress’s ability to criminalize presidential conduct is the Justice Department’s Office of Legal Counsel (OLC), whose opinions are particularly interesting in this arena because they bind Special Counsel Jack Smith. (Smith is both obligated to follow Justice Department policies and procedure and—as part of the executive branch—bound generally by OLC’s interpretation of the law.) OLC has not traditionally cast the matter in the language of presidential immunity, as Trump’s lawyers promise they will do in their coming motion, but as a question of whether statutes of general purpose regulate presidential activity at all. 

Specifically, OLC has traditionally recognized a clear statement rule as a means of discerning whether a given statute applies to the president. (For a detailed discussion of the clear statement rule, see this piece by Jack Goldsmith.) As the office put it in a 1995 opinion: “[G]eneral 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.” In other words, OLC added in a 1996 opinion, “Congress should not be assumed to have altered the constitutional separation of powers without clear assurance that it intended that result.” 

Given that none of the statutes at issue in the indictment expressly apply to the president, it follows that Smith—to be consistent with OLC’s dictates—must be prepared to argue that application of these laws to Trump under the facts alleged would not even “arguably limit the President’s constitutional role”—that is, that it would in no sense chill a legitimate exercise of presidential authority.

In this sense, the Executive Branch’s position seems roughly to approximate the position that Judge Mehta took in Blassingame in a different doctrinal context. Whereas in Blassingame, the district court took the view that the alleged conduct was categorically outside of the “outer perimeter” of the presidential role, here, the special counsel is obliged to acknowledge that the criminal statutes at issue would not even apply to Trump unless the indictment’s allegations went so far beyond legitimate presidential conduct that their application to him would not even arguably chill any legitimate presidential activity.

There’s yet another doctrinal path prosecutors could take in responding to a claim of absolute presidential immunity—one that kind of marries Mehta’s decision in Blassingame and OLC’s understanding of the clear statement rule. In a 1974 Justice Department opinion, then-Deputy Attorney General Laurence Silberman carved out a class of offenses that, he argued, “from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” 

The offense Silberman was referring to in this opinion was the federal bribery statute, 18 U.S.C. § 201. In the 1995 OLC opinion, OLC head Walter Dellinger elaborated on why a violation of the bribery statute raises no separation of powers questions and thus requires no clear statement of application to the president in the statute itself:

[T]he Department of Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President. … [It] raises no separation of powers question, let alone a serious one. The Constitution confers no power in the President to receive bribes; in fact, it specifically forbids any increase in the President’s compensation for his service while he is in office, which is what a bribe would function to do. … Moreover, the Constitution expressly authorizes Congress to impeach the President for, inter alia, bribery. … The Constitution further provides that any party impeached and convicted may “nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

In a fashion that tracks OLC’s discussion of the bribery statute, prosecutors might argue here that Trump’s alleged offenses are of a type that “from the nature of the offense charged, no one, however exalted his position, should safely feel that he is above the law.” The department might argue that, as with receiving bribes, the Constitution also confers no authority to the president to engage in the specific acts alleged, which are reserved for other branches of government. The Blassingame court, as quoted above, follows this reasoning, albeit without drawing a throughline between Trump’s actions and the bribery statute, to address Trump’s argument that his actions on Jan. 6 fell under his wheelhouse to “take Care that the Laws be faithfully executed.”

More broadly, while the statutes under which Trump is charged, unlike bribery, are not specifically mentioned in the Constitution as grounds for impeachment, all of them are plausibly encompassed in the umbrella impeachment charge of “high Crimes and Misdemeanors.”

Hence, Jack Smith might argue that while the corruption of an official proceeding charge under 18 U.S.C. § 1512(c)(1), the conspiracy to defraud the United States charge under 18 U.S.C. § 371, and the conspiracy to prevent any person from their free exercise of rights charge under 18 U.S.C. § 241 do not explicitly apply to the president, they are like bribery in being categorically beyond the need for a clear statement of application for the president.

Like bribery, prosecutors might argue—tracking OLC’s prior writing—prosecuting Trump’s alleged interference with the certification of the Electoral College vote raises no separation of powers question, let alone a serious one. The Constitution confers no power in the president to interfere with Congress’s certification of the electoral vote, to corruptly interfere with the proceedings of a co-equal branch of government, to defraud the United States, or to conspire against the voting rights of citizens. In fact, it specifically entrusts the relevant vote-counting functions to other actors. Moreover, the Constitution expressly authorizes Congress to impeach the president for “high Crimes and Misdemeanors,” which a reasonable Congress might—and the House of Representatives actually did—regard Trump’s actions as constituting.

Here, then, is the bar Trump’s lawyers will have to overcome to prevail on their “very complex and sophisticated motion” to dismiss on presidential immunity grounds: They will have to convince Judge Chutkan or some appellate body above her that the facts alleged in the indictment are close enough to normal presidential behavior that allowing a case to go forward could potentially chill the exercise of more normal presidential conduct. 

They will have to do this by persuading the courts—by one doctrinal means or another—to adopt an exceptionally broad measure of presidential immunity that sweeps in allegations of conduct that are pretty clearly outside of Article II-authorized behavior.

This seems a heavy lift under the facts as pleaded by the special counsel’s office. These facts, after all, accuse Trump not merely of taking actions that Article II does not specifically authorize but of doing so with corrupt intent on the basis of facts he knew to be false.

Trump gets to argue at trial that he was legitimately concerned about election irregularities and believed he’d won the election. But, for purposes of the motion to dismiss, the court has to take the allegations as fact, and the indictment alleges that a slew of people told Trump that his claims of election fraud had no basis in reality, that he acknowledged that he lost at times, and that he proceeded anyway with activities beyond the scope of any legitimate presidential authority.

It’s a little hard to imagine a presidential immunity so robust that it immunizes not merely conduct authorized by Article II, and not merely conduct unauthorized by Article II but whose regulation might chill conduct authorized by Article II, but also conduct not authorized by Article II undertaken in bad faith, fraudulently, and on the basis of lies. That is the doctrine Trump will need in order to prevail on this motion to dismiss in the face of constitutional language that expressly contemplates a former president’s prosecution for crimes committed in office.

One could imagine, at least theoretically, the picture getting better for Trump after all the evidence comes in at trial. Imagine, for a moment, a similar motion for a directed verdict after the defense has introduced evidence at trial that Trump’s motives had been pure as the driven snow, that he genuinely believed he had won the election, and that his stated concern to prevent election fraud was entirely sincere. This situation would present squarely a problem that lies beneath a lot of these executive immunity questions—the question of mixed motives. This question has been kicking around Lawfare at least since Trump fired FBI Director James Comey and we found ourselves confronting the question of whether this firing of an executive branch official could possibly constitute an obstruction of justice. In that debate, Josh Blackman argued that sometimes presidential action may be partly corrupt and partly legitimate. If we apply a criminal statute to such a circumstance, we risk chilling legitimate presidential action, as well as punishing corrupt ones. The full trial record could present a similar mixed-motive problem—one that poses more credibly the problem of chilling legitimate presidential exertions in the name of punishing corrupt ones.

The current record, however, does not really present this question. The court has before it allegations of fraudulent conduct undertaken outside of the boundaries of anything specifically authorized by Article II. It’s hard to envision a doctrine of presidential immunity less than total and categorical immunity that would cover such conduct.

Yet the immunity defense, while a bit of a moon shot, has potential value for Trump in three important respects. The first is the admittedly remote hope that the Supreme Court might adopt a view of criminal immunity that is either broader than Fitzgerald or consistent with it alongside a view of the facts that crams this case within Fitzgerald.

The second is the possibility, perhaps less remote, that the trial record will sufficiently complicate the facts—particularly with respect to Trump’s mens rea—that a somewhat less ambitious conception of presidential immunity might dispose of the case as a matter of law on direct appeal.

The third, and most immediate, value of the defense involves the possibility of delay. 

In a savvy recent column in the Washington Post, Ruth Marcus argues:

Trump might be able to use the absolute immunity argument to delay the trial. The ordinary rule in criminal cases is that appeals have to wait until after a jury verdict. But the Supreme Court has carved out a narrow category of cases in which interim decisions can be appealed, in particular those that involve “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.”

Trump has a good argument that the issue of presidential immunity fits into this exception. In a 1979 Supreme Court case, United States v. Helstoski, a New Jersey congressman was accused of soliciting bribes in return for introducing legislation. He argued that the prosecution was barred by the Constitution’s Speech or Debate Clause, which provides a form of immunity to lawmakers, and the justices said his effort to have the case dismissed on those grounds could be appealed before trial.

Similarly, in a 2009 civil case, Ashcroft v. Iqbal, federal government officials were accused of mistreating a Pakistani man detained after the Sept. 11 terrorist attacks and sought to have the case against them dismissed on immunity grounds. The Supreme Court said they were entitled to appeal the trial court judge’s decision against them, saying that qualified immunity “is both a defense to liability and a limited ‘entitlement not to stand trial or face the other burdens of litigation.’”

In other words, even if Judge Chutkan does not accept Trump’s immunity defense—and even if the appellate courts ultimately affirm her judgment on that score—the immunity defense could be useful as a way of delaying things by front-loading an appellate fight before trial on a question of presidential power. 

With Trump currently scheduled to go to trial in March of an election year, a lengthy appellate fight on an issue of pure law may be exactly what he needs.

Saraphin Dhanani is the Legal Fellow at the Lawfare Institute. She previously worked at the Estonian Ministry of Foreign Affairs for the Ambassador for Human Rights and in the Markets Group at the Federal Reserve Bank of New York. She holds a B.A. from Wellesley College, where she was a Fellow and Ambassador at the Madeleine Korbel Albright Institute, and a J.D. from Stanford Law School, where she was the Senior Articles Editor of the Stanford Law Review.
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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