Donald Trump’s Bid For ‘Absolute Immunity’ Is His Most Dangerous Argument Yet

Former President at the Supreme Court in Texas’ lawsuit to overturn the election, he did so “in his personal capacity as candidate for re-election.” His lawyers Rudy Giuliani and Jenna Ellis were not government lawyers, but rather funded privately through his campaign. His alleged accomplices in organizing fake elector slates to disrupt the electoral vote count on Jan. 6, 2021, were also campaign staffers, paid for by campaign funds.

Trump’s second argument, that he cannot face criminal indictment for actions upon which he was impeached but not convicted, stands on similarly specious grounds.

The Constitution states that punishment for a president convicted in the Senate “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The entirety of Trump’s argument rests on the fact that the text states that “the Party convicted” can be criminally indicted, but doesn’t say anything about a president who is acquitted. Trump claims that criminally prosecuting a president who was impeached but not convicted by the Senate effectively amounts to double jeopardy, which prohibits anyone from being tried twice for the same alleged crime.

Like Trump’s assertion of absolute immunity, this argument is undermined by statements of the Constitution’s authors and the existing historical record.

“Far from being above the laws, he [the president] is amenable to them in his private character as a citizen, and in his public character by impeachment,” said James Wilson, a participant in the Constitutional Convention, at Pennsylvania’s ratifying convention in 1787.

That sentiment has played out in practice, as seen in the Nixon pardon and Clinton’s deal to avoid criminal charges. Clinton’s case is particularly instructive as he, like Trump, was impeached by the House and acquitted by the Senate — and still reached an agreement that prevented his indictment.

In fact, during Trump’s 2021 impeachment trial for instigating insurrection on Jan. 6, his lawyer David Schoen argued that the impeachment was not necessary because the standard criminal justice system could handle such issues for a former president.

“We have a judicial process in this country,” Schoen said. “We have an investigative process in this country to which no former officeholder is immune. That is the process that should be running its course.”

And when Senate Minority Leader Mitch McConnell (R-Ky.) justified his vote to acquit Trump during the impeachment trial, he did so by arguing that the judicial system was the proper arena to adjudicate complaints against former presidents.

“President Trump is still liable for everything he did while he was in office, as an ordinary citizen, unless the statute of limitations has run,” McConnell said on the floor of the Senate after Trump’s acquittal. “[He] didn’t get away with anything yet. Yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.”

The U.S. Court of Appeals for the D.C. Circuit is set to hear arguments in Trump’s case Tuesday.