For Donald Trump, hyperbole has turned into a legal claim.
"I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK? It’s, like, incredible.”
Even if President Trump could commit a crime and suffer no political consequences, would crimes in office result in legal consequences? The U.S. Supreme Court is about to consider whether — and more importantly under what circumstances — a president is immune from criminal prosecution.
The story starts on or about Nov. 14, 2020, when then-President Trump took his first steps to engage in a broad conspiracy to defraud the United States, obstruct the certification of the electoral vote, and “injure, oppress, threaten, and intimidate one or more persons” in the exercise of their right to “have one’s vote counted.” Or so says the federal indictment, filed 936 days after Jan. 7, 2021 — the day Donald Trump’s alleged criminal conduct ceased.
This case, prosecuted by special counsel Jack Smith, was supposed to go to trial this month in a federal courtroom in Washington, D.C. But Trump’s lawyers asserted a bold defense: the former president can’t be prosecuted for any crimes occurring “within the outer perimeter of his Presidential responsibilities.” He’s immune, they say.
And it is a broad claim. Trump’s lawyer argued to the D.C. Circuit Court of Appeals that the president could not be prosecuted for ordering “SEAL Team 6 to assassinate a political rival” — at least, not unless he is first impeached and removed from office.
For Trump, hyperbole has turned into a legal claim. He really does seem to think he could shoot someone in the middle of Fifth Avenue with no consequences.
But this can’t be true — the Constitution’s impeachment clause authorizes criminal charges after a Senate conviction. Some presidents have even taken steps to avoid such charges. Richard Nixon made sure he was pardoned for his crimes, and Bill Clinton signed an agreement with prosecutors to avoid an obstruction of justice charge.
However, it also can’t be true that a president could be prosecuted for any alleged crime. Barack Obama could not be prosecuted for the murder of Osama bin Laden. President Joe Biden could not be prosecuted for his moves to illegally forgive student loans. Even Jack Smith admitted in court filings that some crimes are off limits.
So the problem becomes, where do we draw the line?
While the Supreme Court has been clear that a president has no immunity from civil lawsuits for conduct unrelated to their office (Paula Jones v. Clinton) and a president has “absolute immunity” from civil liability for actions taken within the “outer perimeter” of official duties (Nixon v. Fitzgerald), the court has yet to define the contours of presidential immunity from criminal prosecution.
Back to Mr. Smith’s prosecution. Following a Trump appeal, a unanimous panel of the D.C. Circuit Court of Appeals laid out a rather sweeping (if not sloppy) decision suggesting that presidents have no immunity from criminal prosecution. The court ruled that if a president breaks a “generally applicable” criminal law, then that president is, automatically, acting outside the scope of his duties and therefore has no immunity.
But if any criminal statute can be applied to a president’s official conduct, then the judiciary will always hold, forgive the expression, a trump card over executive action.
To avoid the separation of powers concerns that would arise, the Supreme Court has formulated a “clear statement rule.” This rule — established by the Supreme Court and applied to presidential conduct by multiple administrations from both parties — holds that generally applicable laws, including criminal laws, should not apply to presidential conduct if they present a “possible conflict with the President’s constitutional prerogative.”
But defining the president’s “constitutional prerogative” is itself a difficult task. Would ordering Seal Team Six to take out a political rival interfere with such prerogative? A president is not conferred with the power to execute a citizen for no reason. But what if that citizen is said to be involved in an ongoing plot to overthrow the government? Closer to home, what if a president is alleged to have lied about the facts related to the outcome of an election?
The district court and the Court of Appeals blew right past this complexity, which is likely why the Supreme Court took the case. At the upcoming argument on April 25, you can expect much discussion of the clear statement rule, a president’s constitutional prerogatives, and the “outer perimeter” of his official duties.
None of this is as easy as it seems. Criminal statutes are often vaguely worded and, while we may not be as worried if the average citizen errs on the side of caution to avoid a criminal charge, do we want to impose the burden on a president acting in a politically charged environment?
The matter is made even more difficult because most, if not all, of the allegations against Trump involve speech: claims he made, beliefs he asserted, inflammatory statements, exaggerations, half-truths — even some outright falsities. Do we want presidents to face the risk that their political opponents might come to power and prosecute them? A president is also a politician, and politicians should have broad rights to make political statements — even horrible, frightening and irrational political statements.
After the dust settles, neither party is likely to be happy. Donald Trump is unlikely to get his “Seal Team 6” immunity, and Jack Smith will have to go back to the district court to make his case. The case will then have to proceed there with hearings, discovery, more filings, and several months of trial preparation.
At least in this case, a conviction in 2024 seems highly unlikely, but we should at least know whether a president is immune from prosecution.
Rick Esenberg is president and general counsel, and Dan Lennington is deputy counsel, at the Wisconsin Institute for Law & Liberty.
