The Supreme Court must reject Trump's immunity arguments
The American system of jurisprudence grants all criminal defendants the formal status of “innocent until proven guilty”. Due process protections include the right against unreasonable search and seizure, the right to counsel, the right to review all evidence that will be used in court, to counter that evidence, and to remain silent to avoid self-incrimination.
Even clear guilty verdicts based on overwhelming and conclusive evidence can be appealed to a higher court. And, any conviction that is not in keeping with the law can and should be overturned by a court of appeal. Many scholars and jurists agree that this is true even when the defendant is clearly guilty. Rightful lawful process is upheld as a paramount principle, to defend against unjust or lawless prosecutorial abuses.
That is not to say there are no false arrests, manipulated or unprofessional prosecutions, or wrongful convictions. All of these happen, and not every defendant is able to prevail and achieve justice. The system is designed to be reformed and improved, and that needs to happen in a number of ways—especially with regard to the must vulnerable and economically underprivileged defendants.
American citizens also have a right to see justice done. When laws are violated, criminals should be held to account. This is one of the central principles that drove the American Revolution itself. The Declaration of Independence reads almost like a charging document—outlining a number of crimes committed by King George III against the people living in the 13 North American colonies that would join the Revolution.
Donald Trump’s request for blanket immunity is absurd and lawless on its face. It comes from a criminal defendant who has already attempted to end American democracy and seize power, first through manipulated election outcomes and then, when that failed, through violent force. That same defendant has begun to refer to the violent attackers who attempted a coup on January 6, 2021, as “warriors”—one of many suspected thinly veiled indications he wants such a paramilitary force to aid him in his attempts to take power again.
Trump’s lawyers shocked the world by arguing in court that he could order the assassination of his political rivals—an illegal order for which the military personnel involved would face prosecution for homicide, and possibly treason—and not face any criminal charges unless and until he were impeached by the House of Representatives AND convicted in the Senate.
The rumor mill of speculation and analysis that drives discussion ahead of controversial Supreme Court rulings would have us believe that a number of justices see the Trump immunity case as less about Trump and his publicly documented criminal actions—or even the seditious crime-boss arguments his lawyers have made—and more about whether future presidents will be subjected to prosecution for political reasons.
That is a worthwhile question: If Trump is jailed, will his allies seek to retaliate? They have already said they will. He has said he will retaliate even if he is not jailed and is elected. In both cases, these are confessions to an illegal intention to abuse power for personal or partisan gain. In both cases, those threats are crimes in themselves. The Justices should note that in their ruling, whatever shape it takes.
But again: prosecuting Trump for crimes committed in public view has not been easy. Years of public sharing of hard evidence has not resulted in his conviction. Criminal defendants enjoy a wide range of rights against unlawful detention, prosecution, or imprisonment. And, the Justices can effectively outlaw political prosecutions without granting immunity. Ideally, they can do that without issuing a ruling that suggests partisan or ideological motivation among some or all of the Justices.
We should all hope that is what is taking them so long to issue an opinion in the Trump immunity case.
The core question at issue seems to be whether Presidents can face prosecution after leaving office for actions they took while in office. The bright line that needs to be defined is the line between “official acts” and “actions not connected to official duties”. In the Trump case, in fact in all of Trump’s cases, these are relatively easy questions:
The President of the United States has no formal duty of oversight of the electoral process.
The President of the United States is barred from taking for personal use classified national security materials.
The President of the United States has no lawful authority to incite, invite, assist, defend, or reward a violent attempt to prevent the peaceful transfer of power.
There is no argument to be made in any of these cases that Trump could be immune from prosecution for violations of law, since none of the alleged actions fall under the President’s authority.
Were the question of approving or delaying deployment of the National Guard NOT about a decision to stop or to allow an ongoing violent assault on the Capitol aimed at keeping him illegally in power, it might fall under “official acts”.
In such a situation, it might be fair to argue that he should not be prosecuted for the sole fact of having declined to authorize National Guard assistance to law enforcement.
But that is not the situation; the situation is that a violent mob, radicalized over many months by Trump himself, attacked the Capitol as part of a coordinated multipronged effort to overrule American voters, prevent the peaceful transfer of power to the President-elect, and install himself as an unelected autocrat.
In short, it is implausible from every perspective rooted in law and reason for the Supreme Court to find merit in the absurd, seditious, and debased arguments of Trump’s lawyers that he should enjoy blanket immunity from prosecution. Democracy cannot stand if the Court finds that flagrant lawbreaking—including a violent coup attempt, multifaceted election interference, and theft of national security secrets—cannot be countered by the rule of law.
Given that Trump wants to put people in mass detention camps, grab children out of schools, repeat his illegal family separation policy, and pursue a campaign of vengeance against his critics and those brave enough to blow the whistle on criminal abuses—and given that his lawyers argued he should be allowed to assassinate political rivals, or really anyone he wants to, with impunity—the Court must roundly reject the entire scope of argument presented by Trump’s attorneys. To uphold and defend the Republic, the Court must find that abusive prosecutions are illegal, but Presidents cannot be immune from prosecution.