The Trump Defense: Why Experts Predict a DC Case Dismissal

Thread via @willscharf

A short while ago in federal court in Washington, D.C., President Trump filed a motion to dismiss the case pending against him there for his alleged actions in the aftermath of the 2020 elections. The motion cites presidential immunity as a ground to dismiss the case in its entirety. This is a very big deal.

The motion persuasively argues that the D.C. case should be dismissed, and if past practice is any guide all proceedings could and should be stayed while this issue is litigated fully. Notably, this same reasoning should apply to the ongoing Georgia prosecution as well.

A number of legal commentators have anticipated this move, and in this thread I’m going to get into the weeds and review the core argument made—that presidential immunity is an absolute bar to the prosecution of President Trump for his alleged acts in office that underlie the federal prosecution in D.C.

(A) Presidential Immunity

At its heart, President Trump is arguing that presidents, even after their terms in office are over, are absolutely immune from criminal prosecutions arising out of their acts in office that fall within the “outer perimeter” of their official responsibilities as president, unless they have first been both impeached and convicted by the House of Representatives and Senate. And he’s arguing that all of the acts he is alleged to have committed fall within this absolute immunity.

This view, as the motion filed today makes clear, is deeply rooted in bedrock legal principles, in caselaw, in the Constitution, and in actual practice dating back centuries.

In Nixon v. Fitzgerald, the Supreme Court ruled that a president has absolute immunity from civil liability for acts within the outer perimeter of their official responsibilities. In short, you cannot sue a former president personally because his official acts harmed you. This is unquestioned Supreme Court precedent, based on very serious, core separation of powers concerns. If a president were susceptible to civil suit for his official acts, the Court held that this would “raise unique risks to the functioning of government” in light of the “singular importance of the President’s duties.” The purpose of presidential immunity, the Fitzgerald Court’s view, is to prevent concerns about being sued clouding the president’s judgment and crippling his ability to act—presidents need to be able to discharge their duties to the best of their abilities without having to worry about being haled into court when their terms expire.

This well-established immunity doctrine has never been tested in the criminal context, for the simple reason that no president has been subjected to the sort of relentless prosecutions that President Trump has now been faced with, but the motion persuasively argues that the reasoning in Fitzgerald should still apply.

(B) Impeachment Clause

This view is also rooted in the actual text of the Constitution. The Impeachment Clause of Article I provides that, although impeachment proceedings do not themselves carry a punishment beyond removal from office, a party convicted after impeachment “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

By specifying that a president impeached and convicted could be subject to indictment, etc., the Constitution plainly and clearly implies that absent impeachment and conviction a president cannot be criminally prosecuted for his official acts.

Democrats impeached President Trump twice, and on both occasions the Senate acquitted him. Absent a conviction at an impeachment trial, presidential immunity applies to all of President Trump’s acts that fall within the outer perimeter of his official responsibilities, and for these acts at least he cannot be prosecuted.

(C) Scope of Immunity

Are the acts that underlie President Trump’s indictment in D.C. within this “outer perimeter” of his official responsibilities as president? I think the answer is clearly yes.

First, it is very important to note that in the context of assessing immunity, the motive of a president is irrelevant. Why the president did something is immaterial; the question is what the president did and whether that was within this very broad outer perimeter of his official responsibilities.

And because the scope of presidential authority and of presidential responsibilities is so vast, the catchment of presidential immunity is similarly expansive. When you actually review the alleged acts that underlie the D.C. indictment, my view is that each and every one clearly falls within the other perimeter of President Trump’s official responsibilities. We are talking about things like

•Making public statements about the administration of the 2020 federal election;
•Communications with public officials, both in the states and in the federal government, about the administration of the 2020 federal election; and
•Taking steps, like assembling alternate slates of electors, to allow Congress and/or the Vice President to take action on the federal election fraud that he believed had occurred.

Remember, for the purposes of assessing the scope of immunity, intent and veracity/falsity are irrelevant. Your views on whether President Trump’s views on the election were accurate are irrelevant. Your views on why President Trump did what he did are irrelevant.

If the acts themselves were presidential acts, falling within the outer perimeter of presidential responsibilities, they cannot form the basis for a criminal prosecution of President Trump, because presidential immunity applies.

As a result, since the entire indictment in the D.C. case against President Trump is predicated on acts that he is immune from prosecution for, the case should be dismissed.

(D) Appealability

One final note on timing: any denial of this motion to dismiss, or any similar motion in Georgia, is likely immediately appealable, as is the case in where Congressional legislative immunity is implicated. Which means, depending on how long it takes Judge Chutkan to rule, this issue could be before the D.C. Circuit and potentially the Supreme Court before long.