Former President Donald Trump has claimed he is immune from prosecution – specifically on the federal charges that he tried to subvert the results of the 2020 presidential election. He says that his actions in connection with the 2020 election were part of his official duties, and he also argues that because he was not convicted during either of his impeachments, he cannot be tried in a criminal court for his actions.
The trial judge, Tonya Chutkan, rejected both of those arguments on Dec. 1, 2023, and Trump has appealed her ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which plans to hear the case on Jan. 9, 2024.
Special counsel Jack Smith, who is prosecuting the case, had asked the Supreme Court to step in, even ahead of the appeals court. He argues that waiting for the appeals process – and an almost certain application afterward to the Supreme Court for review – will delay the trial too long. He says the delay would deprive both Trump of a speedy trial and the American public of a long-awaited resolution of the disputes around the 2020 election – perhaps until after the 2024 presidential election.
The Supreme Court on Dec. 22, 2023 declined to step in, allowing the normal appeals process to move forward. The appeals court’s schedule requires a third round of briefing by both parties – Trump and Smith – to conclude by Jan. 2, with oral arguments slated for Jan. 9.
What’s at stake? In broad strokes, Trump’s claim appears to suggest a way he hopes to avoid any potential legal consequences of his actions. The legal issue is more narrow, but with a similar effect: If Trump’s claims are upheld, the prosecution of a former president would still be hypothetically possible, but practically extremely difficult, and only in a very limited set of circumstances.
As a scholar of constitutional law, I know that both questions will have to be resolved, either by the Supreme Court or the appeals court – or both – before Trump’s trial can proceed. Let’s look at each in turn.
Official presidential election deception?
First, Trump argues that the federal charges, including allegations that he defrauded the United States by promoting a conspiracy to block certification of the 2020 election results, are invalid because he was acting in his official capacity as president while taking the actions alleged in the indictment. A long-standing Supreme Court precedent provides federal officials with immunity from lawsuits for actions they took as part of their official duties.
The current precedent stems from a 1982 Supreme Court decision, in Nixon v. Fitzgerald, which was a civil lawsuit filed by a former Air Force analyst whom Nixon ordered fired about a year after the analyst testified to Congress about an aspect of defense spending. The ruling in that case was clear: Presidents cannot be sued for actions that fall within what the court called the “outer perimeter” of their official responsibilities.
The court did not define the “outer perimeter” in that case, but some clarity arises from a more recent case in which Trump himself was sued for civil damages based on his actions on Jan. 6, 2021. A federal appeals court ruled that Trump’s campaign activities were not official presidential actions, because campaigning is done for the purpose of seeking an office – not as part of the duties of the president.
In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting “in his personal capacity as a candidate,” as distinct from his official capacity as president.
Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on “matters of public concern” fall within the scope of his presidential duties.
His claim is new, legally speaking, because the Nixon v. Fitzgerald ruling involved a civil case, not a criminal one. And the Nixon case did not address whether a president’s official duties include running for reelection.
The remaining legal question boils down to the vague idea of an “outer perimeter” of official presidential responsibilities. There is one Supreme Court ruling that offers a clue here: In United States v. Nixon in 1973, the court ruled that the presidential privilege of confidential consultation with advisers had to yield to “the fair administration of criminal justice.” The court upheld a subpoena Nixon had been fighting.