Immunity does not mean immunity

Dear Readers, We are in such legal unmarked territory. As never before, we are directly confronting the possible legal bolder of Presidential Immunity, positing a President absolutely immune from criminal or civil prosecution.

The defense of a government official’s immunity is born from the parlors of judicial parlance. The natal embers of immunity is the idea that federal officials cannot be sued for acts committed in their official capacity mixed with some federalism ideas. You just don’t want federal officials to have to answer to anyone, not even states, when carrying out their duties.

Applied to Presidents, there is no rich history of legal jurisprudence to draw upon, no statute clearly defines legal boundaries. Historically, there was a bit of jostling as to what you could do in suing a President. Andrew Jackson allegedly huffed, over litigation against him concerning the establishment of a National Bank, “John Marshall has made his decision, now let him enforce it.” Abraham Lincoln took great liberties with presidential powers during the Civil War, which ultimately got the presidency slapped down by the Supreme Court after his assassination.

The rules were sit firmly way back in 1867. The state of Mississippi sued President Andrew Johnson for an injunction to stop Reconstruction Era enforcement by the Executive Branch, positing that Reconstruction laws were unconstitutional and a President cannot enforce an unconstitutional law. At the time, the United States Supreme Court squashed this legal maneuver, finding it had “no jurisdiction of a bill to enjoin the President in the performance of his official duties…. [an argument it did was] an absurd and excessive extravagance.”

Presidents still got sued. Famously, Leon Jaworski, the second special prosecutor appointed to investigate the Watergate scandal, sued Richard Nixon over the White House tapes. This went all the way to the Supreme Court and the Justices ultimately took down a President, when the tapes were ordered released and became public. Bill Clinton’s presidency unraveled because of a lawsuit, the Supreme Court blessed to go forward while he was President, about sexual harassment from acts committed before his election.

What we have never seen is a President criminally indicted for acts committed while in office. Obviously, Richard Nixon was an unindicted co-conspirator, but was never hauled in front of a jury. The Department of Justice policy was not to prosecute a sitting President. Once President Nixon resigned, Gerald Ford pardoned him. Hence, we have never asked, nor answered, the legal question about whether a President can be criminally liable for acts committed while in office.

Of the Federal charges against Donald Trump, only the Washington D.C. case involves acts committed in office, the January 6th insurrection and related schemes to undermine the election results. Similarly, there is a multi-plaintiff civil rights lawsuit against him for these same January 6th insurrection acts. Each tests the scope of the Reconstruction Era opinion establishing Presidential legal immunity.

Two (2) weeks ago, Mr. Trump received a “double-whammy” from District Court Judge Tanya Chutkan denying his claim of immunity in the criminal case AND the D.C. Court of Appeals panel unanimously doing the same in the civil lawsuit.

The criminal result is probably easier to understand. The argument, that a President can commit all manner of potential crimes while in office and never held accountable, is chilling. We do not elect Presidents as dictators. Thanks to George Washington, we have always understood there is a difference between the Office of the President and the man or woman occupying it.

Donald Trump wants to blur this distinction. Judge Chutkan shattered his argument. Principally, she noted that the acts of a candidate for President, whether an incumbent or not, are not done in furtherance of any official duties. Strike one! Moreover, she observed, no President can legitimately claim immunity for criminality. Strike two! Hence, there is no legitimate claim of immunity from criminal prosecution. Strike three!

Immunity in the civil context is more nuanced. There is a more developed body of case law for governmental acts committed by some within scope of official duties – absolute immunity. The D.C. Circuit Court of Appeals similarly held that a candidate for office does not have the right to trample constitutional rights in an election, this is not in the scope of official duties. Game over – no civil immunity.

Inevitably, these two decisions will probably be viewed through the lens of partisanship. They shouldn’t, because they affirm a critical legal cornerstone – no person is above the law.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.

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