Trump’s absurd ‘total immunity’ argument for law-breaking presidents, deconstructed

Analysis by Zachary B. Wolf, CNN

(CNN) — In an all-caps social media post at 1:59 a.m. ET Thursday, former President Donald Trump said even presidents who “cross the line” should get “total immunity.”

It is an escalation of the expansive immunity argument Trump’s lawyers have pushed in their efforts to stop his prosecution by special counsel Jack Smith over the former president’s efforts to overturn the results of the 2020 presidential election.

An appeals court in Washington, DC, will soon rule on the merits of the legal argument, although the three-judge panel seemed extremely skeptical at oral arguments last week.

This is not simply a legal matter

As he pings from the campaign trail to the courtroom, Trump is also making a political argument, and voters will in essence be endorsing his claims if they send him back to the White House in November. Trump is the prohibitive front-runner to get the Republican nomination for the third straight time, and CNN’s most recent assessment is that Trump has an advantage over President Joe Biden in enough states to potentially win back the White House.

The literally unchecked power Trump would claim for the president (he has also said he would be a dictator for a day to deal with immigration at the border and focus on drilling for oil) is certainly at odds with what every American schoolkid is supposed to learn about a federal system of government that relies on separation of powers.

“The core idea of our Constitution, of American law, of the founding of our country, is that no person is above the law,” said Norm Eisen, a CNN legal analyst who served as counsel to House Democrats in Trump’s first impeachment trial. “Everyone is subject to the Constitution. No, you cannot cross the line,” Eisen said.

Giving a president absolute immunity “would be a dictatorship,” he argued.

Rejecting absolute immunity for presidents is not a partisan idea

A group of former officials in Republican administrations filed an amicus brief in the US Court of Appeals for the DC Circuit late last year, arguing the immunity idea was “absurd,” “dangerous” and would remove the guardrails from one of the most powerful people on Earth.

“The Constitution does not confer any kind of immunity upon former Presidents for conduct that violates the criminal laws of the United States and instead contemplates that a former President might be prosecuted for crimes committed in office,” they wrote.

Prosecution and previous presidents

They also added some interesting history, such as when former President Ulysses Grant was caught speeding in a carriage through the streets of Washington. He was arrested and paid a fine.

When former President Bill Clinton admitted to giving false testimony, it was as part of a deal to avoid prosecution. And when former President Gerald Ford granted a pardon and former President Richard Nixon accepted it, both men were acknowledging that presidents are liable under the law.

Trump means what he says

If anyone doubts that Trump means what he says on social media, simply roll back through his tweets before the January 6, 2021, insurrection, when he talked openly about trying to overturn the 2020 election results.

His post in the wee hours of Thursday morning is worth reading in its entirety, along with some context. What’s below are his words (caps are his) interspersed with some context added by me.

Forty-six different presidents, including Trump during his first term, have been functioning since 1789, and Trump, trying to become the 47th, would be the first to argue that a president should have “absolute immunity.”

Trump currently faces four different criminal cases. In addition to the federal case, a case in Georgia also concerns Trump’s efforts to overturn the 2020 election. Smith is also prosecuting Trump for mishandling classified information after he left the White House. And the Manhattan district attorney indicted Trump in relation to hush-money payments made around the 2016 election.

To be sure, US presidents have routinely bypassed Congress to test their powers. Abraham Lincoln suspended habeas corpus – a legal principle that allows people who believe they are being held unlawfully in prison or detention to challenge it – to imprison people outside the judicial process. Presidents after World War II launched wars overseas.

These presidents would presumably argue that in their capacities as president, they must expect some legal immunity to pursue policy and lead the country. Their actions were also subject to review by the courts, which have not been afraid to rein in presidents. All of those presidents also abided by the tradition of a peaceful transfer of power. Trump, by contrast, actively tried to stay in power.

Trump’s effort to overturn the 2020 election hardly seems like an accident or a simple mistake. It was a multipronged effort with pressure on state officials to “find” additional votes, slates of fake electors recruited in key states and a pressure campaign on then-Vice President Mike Pence to reject electoral votes.

No other president in US history was indicted after leaving office until Trump. While Trump likes to say Democrats and Biden are persecuting him, that’s false. He was indicted by a special counsel, Smith, who was appointed specifically to separate the Trump cases from the Department of Justice.

Trump was also not indicted at the end of his term, but rather years after he left office, following a large-scale investigation by a select House committee led by Democrats and featuring some Republicans heard testimony from mostly Republican witnesses. Smith has taken much of that work for his own investigation.

Ultimately, Trump was indicted for his two federal cases by grand juries made up of ordinary citizens empaneled in Washington, DC, and Florida. Trump, meanwhile, has said that if he’s reelected he could use the Department of Justice to go after his political rivals.

Is this a tacit admission that things he did as president broke laws? Or is it a reference to arguments in court last week where his attorney told judges that a hypothetical president who ordered SEAL Team 6 to assassinate a political rival could only be prosecuted if first impeached by the House and convicted in the Senate.

Certainly there are shades of gray between good and bad. Try to imagine a country in which the head of state felt no need to consider what might be legal, what is good and what is bad.

This is a good place to note the circularity of arguments on Trump’s behalf. In arguing for total immunity, his lawyer said a president could only be prosecuted if he or she was convicted by the Senate in an impeachment trial. That’s the opposite of what Trump’s backers said during his impeachment trial, when they argued against impeachment because he could still face criminal prosecution.

The Constitution itself separates the impeachment process from indictment and prosecution in Article 1, Section 3, when it says anyone who is impeached is still “subject to Indictment, Trial, Judgment and Punishment, according to Law.”

This is a clear attempt to confuse his own legal troubles with the larger conversation about policing in the US. Pretty much no one is arguing that rogue cops should be immune from prosecution.

This feels like Trump’s attempt at humility. He frequently overstates his own accomplishments as president.

Trump’s lawyers argued that a president should have immunity from prosecution for doing things like giving false information to Congress before deploying US troops (an allusion to former President George W. Bush) or authorizing the death of a US citizen abroad with a drone strike (an allusion to former President Barack Obama).

Except neither of those presidents faced prosecution. And neither Trump nor Biden have been shy about deploying US military power.

It’s actually an appeals court currently considering the total immunity claim. The judges all seemed extremely skeptical. Trump seems to expect, or hope, the US Supreme Court, where he nominated three of nine justices to their positions, will ultimately weigh in.

The Supreme Court has said the appeals court should consider the matter. Meanwhile, the first criminal case against him, for trying to overturn the election results, is temporarily on hold.

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