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Are US presidents above the law?

The numerous criminal and civil court cases against Donald Trump have turned the spotlight on one of the most contentious concepts in US law: presidential immunity. 

Trump’s claim that he is shielded from the federal case accusing him of meddling in the 2020 US election has reignited a debate over when and how presidents are protected from legal action. It is also forcing US courts to address the glaring gaps in a doctrine built on a patchwork of case law as the country heads for yet another election.

The US Court of Appeals for the District of Columbia Circuit ruled on Tuesday that Trump was not entitled to presidential immunity. The former president is likely to pursue his challenge all the way to the Supreme Court, which will have the final say.

“It’s truly historic,” said Barbara Perry, Supreme Court and presidency scholar at the University of Virginia. Should the decision stand, “it would be a landmark among landmarks”.

What is presidential immunity?

The theory behind presidential immunity is that whoever sits in the White House should be protected from legal challenges so that they may run the country without fear of liability or prosecution for their actions.

No US law grants presidential immunity from criminal charges, nor is it addressed in the constitution, which instead says the president, vice-president and other officers must be removed from office if impeached and convicted of “high crimes and misdemeanours”, including treason and bribery.

The first real test came when Richard Nixon was accused of criminal activity amid the Watergate scandal. That prompted the Department of Justice in 1973 to weigh in on his status as president of the country, opining in a memo that indicting or prosecuting a sitting president would impede constitutional duties.

The DoJ reaffirmed its position in 2000. Only the House of Representatives may bring criminal charges against the president via impeachment, it added. 

The memos are not binding but they do help illuminate federal prosecutors’ thinking when it comes to pursuing sitting presidents for alleged crimes.

The DC Circuit ruled that former presidents can be prosecuted by federal authorities for what they did in office. But it made clear that its analysis did not address “a sitting president” nor the “state prosecution of a president, sitting or former”.

The Supreme Court has previously weighed in on presidential immunity from civil liability, but there is virtually no precedent from it determining whether immunity stretches to criminal cases.

What about civil lawsuits?

For civil litigation — which carries the threat of monetary penalties but no prison time — the case law is more developed, starting with Nixon vs Fitzgerald, in which Nixon was sued by a man who lost his job in the US air force. In a 5-4 vote, the Supreme Court in 1982 found that presidents are immune from civil suits linked to official actions taken while in office.

“Because of the singular importance of the president’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government,” the court said in the majority opinion.

Fifteen years later, the high court clarified in a unanimous ruling, Clinton vs Jones, that a sitting president is not shielded from civil litigation stemming from actions executed prior to taking office. The case originated from a lawsuit filed by Paula Jones, a state employee who alleged that Bill Clinton made “abhorrent” sexual advances to her while he was governor of Arkansas and that she was punished professionally for rejecting him. Clinton denied those claims.

“[W]e have never suggested that the president, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity,” the justices wrote in 1997.

Trump had previously sought immunity in a civil defamation case brought by E Jean Carroll, a writer who accused him of sexual assault. He had rejected her allegations while he was president, and said that he was protected from being sued over those comments as a result.

A federal appeals court rejected that defence — because it was raised too late in the legal process, it found. A jury last month awarded Carroll $83.3mn in damages. Trump vowed to appeal against the decision.

What has Trump argued?

Trump is trying to convince US courts that he should not have to face federal criminal charges for allegedly trying to obstruct the results of the 2020 presidential election, which he lost.

The appeals court on Tuesday disagreed: “[A]ny executive immunity that may have protected him while he served as president no longer protects him against this prosecution,” the judges wrote in the unanimous order.

The question is crucial not just to the immediate case but in terms of defining the boundaries of presidential immunity. It is so vital, in fact, that Jack Smith, the special counsel overseeing Trump cases at the DoJ, had asked the Supreme Court to bypass the intermediate appeals court and take up the case immediately. But it declined to do so, letting the DC Circuit have its say first.

During oral arguments before the DC Circuit, Trump’s lawyers argued for a broad interpretation of the doctrine. They said a former president may only be prosecuted if previously impeached and convicted by Congress for similar crimes — even in some of the most extreme circumstances.

Judge Florence Pan challenged that argument, asking if that meant a president could order a Seal Team to murder a political rival. Trump’s lawyer said the president would have to be impeached and convicted before a criminal prosecution.

The DoJ told the court that Trump’s case was “not a place to recognise some novel form of criminal immunity”.

What do legal experts think?

Many legal scholars agree that some degree of presidential immunity is appropriate, even if they differ on how far it should extend.

In 2020, conservative Supreme Court Justice Samuel Alito asked in a dissent if a sitting president facing charges would be arrested and fingerprinted. “While the trial was in progress, would aides be able to approach him and whisper in his ear about pressing matters? . . . And if he were convicted, could he be imprisoned? Would aides be installed in a nearby cell?” he said. “This entire imagined scene is farcical.”

In 1997, liberal Supreme Court Justice Stephen Breyer raised concerns around legal challenges interfering with presidential tasks. “[A] lawsuit that significantly distracts an official from his public duties can distort the content of a public decision just as can a threat of potential future liability,” he wrote in his opinion.

But others have cautioned about limiting the extent of immunity. “Instead of inhibiting the president’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behaviour,” the DC appeals court panel wrote in Tuesday’s order.

Saikrishna Prakash, professor at the University of Virginia School of Law, argued in a 2021 paper that there was “little reason to suppose that the constitution grants immunity from prosecution and punishment”. And such penalties materialising only after an impeachment allow a president to continue violating the law as well as the constitution, he added. 

“Although presidents are exceptional actors on the constitutional stage and in the life of the nation, they do not have truly exceptional, if tacit, criminal shields,” Prakash said. “Great powers do not always come with great immunities.”

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