In his endless quest to delay the criminal cases pending against him, just before Christmas Donald Trump asked the D.C. Circuit Court of Appeals to dismiss the federal election interference case against him. The former president is arguing that he is entirely immune from criminal prosecution for actions he took while in office. If Trump succeeds, special counsel Jack Smith would have to dismiss one of the two federal criminal cases pending against Trump. He should not succeed, and likely will not.
Trump’s argument is based on the fact that the president enjoys legal protections that you and I do not. The doctrine of “presidential immunity” shields presidents from things like civil suits for official actions taken while in office, and from having to provide another branch of government with certain sensitive information involving foreign or domestic security. This is an acknowledgement that we need to allow the president to make a myriad of decisions everyday and we don’t want the president distracted by lawsuits based on those decisions.
There are many limits to the doctrine of presidential immunity.
The Supreme Court has never definitively ruled on whether a president or former president can be criminally prosecuted for acts undertaken while president. That is because we have never had a president engage in the type of behavior Trump engaged in when he fruitlessly attempted to hang on to the presidency after he lost the election.
But legally, this question is not a tough one. There are many limits to the doctrine of presidential immunity. Former President Richard Nixon learned this when he unsuccessfully argued that he should not have to turn over the secret tapes he made in the Oval Office to the special counsel investigating the Watergate affair. So both legal precedent and the fundamental principle that no person is above the law lead to the same conclusion.
Recently, the Supreme Court declined Smith’s request to expedite resolving the question of…
Read the full article here