Trump’s lawyers plan to argue that the actions cited by federal prosecutors as criminal violations were within the scope of Trump’s constitutional duty as chief executive to “take care that the laws be faithfully executed.” This is a long shot, but one that holds out the prospect that Trump could delay the case beyond the March 2024 trial date set last week by U.S. District Judge Tanya S. Chutkan and possibly beyond the presidential election.
Trump defense lawyer John Lauro previewed this strategy in a hearing last week before Chutkan, saying the Trump team planned 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.”
Lauro said the four-count indictment of Trump involving his efforts to overturn the election results “really embraces executive action or items within the penumbra of executive action … of what President Trump under the constitution was required to do as president.”
This is bold but not entirely laughable. The argument derives from a 1982 Supreme Court case, Nixon v. Fitzgerald, involving a Pentagon whistleblower, A. Ernest Fitzgerald, who complained about cost overruns and filed a lawsuit against then-President Richard M. Nixon seeking damages, claiming that he lost his job in retaliation for his congressional testimony.
The court, ruling 5-to-4, held that presidents possess absolute immunity from civil suits for damages arising from their official actions, both while in office and after they leave. Calling absolute immunity a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history,” the court adopted a broad interpretation of what constitutes official acts, saying it applied to any conduct “within the ‘outer perimeter’ of his official responsibility.”
The case has come up in the context of civil lawsuits against Trump by Capitol police and Democratic lawmakers, claiming that he incited the Jan. 6, 2021, mob to march on the Capitol and therefore is liable for damages for their injuries during the insurrection.
Trump’s lawyers sought to have the suits dismissed, arguing that Trump “is shielded by absolute presidential immunity because his statements were on matters of public concern and therefore well within the scope of the robust absolute immunity afforded all presidents.”
U.S. District Judge Amit P. Mehta ruled in February 2022 that the Nixon precedent did not bar the suits against Trump.
Mehta noted that Trump’s responsibility under the “take care” clause did not extend to the certification of presidential electors, in which the president plays no assigned role. And, he said, while speech “is unquestionably a critical function of the presidency,” that does not insulate all presidential speech.
He cited the example of a president who touts his accomplishments at a campaign rally but also instructs the crowd to punch a protester in the face. “These are unofficial acts, so the separation-of-powers concerns that justify the President’s broad immunity are not present here,” Mehta wrote. Trump, he said, was acting with “an electoral purpose, not speech in furtherance of any official duty.”
His decision is on appeal to the D.C. Circuit, which heard oral argument in the case last December. But it would be a significant — and surprising — stretch for courts to apply the Nixon v. Fitzgerald precedent of civil lawsuits to somehow bar Trump’s criminal prosecution on the election charges.
The theory of shielding the president from private lawsuits involved the need to protect presidents — like others who enjoy absolute immunity, such as judges and prosecutors — from having to second-guess themselves as they made difficult decisions. “In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages,” the court wrote. That threat of vexatious litigation is far less present in the context of criminal cases duly authorized by federal grand juries.
In addition, there has historically been little doubt that presidents could face criminal liability for their actions — only debate about whether that could take place while they were in office. Alexander Hamilton wrote in Federalist 65 that a president impeached and removed from office “will still be liable to prosecution and punishment in the ordinary course of law.”
The Justice Department’s conclusion that a sitting president cannot be indicted or tried is premised on the view that it would “seriously interfere with his ability to carry out his constitutionally assigned functions” — clearly assuming that a president is subject to criminal liability after leaving office. Nixon v. Fitzgerald itself noted the “lesser public interest in actions for civil damages than … in criminal prosecutions.”
Even assuming Nixon v. Fitzgerald applies in the criminal context, the argument is even stronger in the pending criminal case than in the civil lawsuits that Trump’s actions didn’t fall within even the “outer perimeter” of his official duties.
The lawsuits focus on the “bully pulpit” aspect of the presidency, in this case Trump’s tweets and his speech on the morning of Jan. 6 urging his supporters to go to the Capitol and “fight like hell.” But the Jan. 6 indictment doesn’t hinge on Trump’s remarks. Rather, it sweeps in efforts to organize fraudulent slates of electors and to pressure state officials not to certify the election results — acts that appear far afield of Trump’s presidential responsibilities.
Still, 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.’”
So, watch this issue. Trump’s bid to have the case dismissed on absolute immunity grounds is highly unlikely to succeed. But consider: In the civil litigation over Trump’s immunity, Mehta ruled in February 2022, the appeal was argued in December, and there’s still no decision. If Trump’s goal is to delay, he might be able to win by filing this losing motion.
