Trump’s claim of absolute immunity isn’t supported by Supreme Court precedent

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Trump's claim of absolute immunity isn't…

Trials & Litigation Trump's claim of absolute immunity isn't supported by Supreme Court precedent

By Debra Cassens Weiss

October 19, 2023, 9:51 am CDT

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Former President Donald Trump has little precedent to help him in his bid to dismiss the election-interference charges against him based on a claim of presidential immunity. Photo by Evan Vucci/The Associated Press.

Former President Donald Trump has little precedent to help him in his bid to dismiss the election-interference charges against him based on a claim of presidential immunity.

In their Oct. 5 motion to dismiss, Trump’s lawyers argue that their client has absolute immunity for acts that extend to the “outer perimeter” of his official responsibility. Trump’s attempt to ensure election integrity was “at the heart of his official responsibilities,” making him absolutely immune from prosecution, the motion argues.

The motion acknowledges, however, that the issue is a “serious and unsettled question” of law because the U.S. Supreme Court has not directly addressed it.

The New York Times has the story.

The brief “was right to say that there is no other Supreme Court decision squarely on point,” the New York Times reports. “But the leading candidates all point in a different direction.”

The “outer perimeter” reference comes from a 1982 decision, Nixon v. Fitzgerald, which involved a civil lawsuit, rather than a criminal prosecution. The plaintiff in the case was an Air Force analyst who attributed his ouster to his congressional testimony on cost overruns. The decision protected former President Richard M. Nixon from the suit.

Trump’s lawyers cited the case at least 40 times, even though it dealt with civil immunity.

Two other Supreme Court decisions on presidential immunity “seem to be of no help” to Trump, according to the New York Times.

The Supreme Court allowed a sexual harassment suit to proceed against former President Bill Clinton while he was in office in the 1997 decision Clinton v. Jones in 1997.

And in the 2020 decision in Trump v. Vance, the Supreme Court said Trump isn’t automatically and absolutely immune from state criminal subpoenas in a case seeking his financial records.

The New York Times says Trump’s lawyers likely favored the immunity argument partly because any ruling would be subject to immediate appeal to the U.S. Court of Appeals for the District of Columbia Circuit.

And if his immunity claim fails there, “the Supreme Court awaits,” the New York Times says.

See also:

“Trump’s election-subversion co-conspirators included DOJ official, 4 other lawyers, indictment says”

“Criminal charges add twist to Trump lawyers’ disciplinary cases”

“Trump gets bad news on election probes from special counsel Jack Smith and Georgia Supreme Court”

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