'Presidential immunity' is a key part of Trump’s game plan — but it isn't working

27 December 2023

Donald Trump has made "presidential immunity" a big part of his defense in special counsel Jack Smith's election interference case, arguing that because he was still president in late 2020 and early 2021, he is immune from prosecution.

Judge Tanya Chutkan has flatly rejected Trump's argument, ruling that presidents do not enjoy a "divine right of kings" in the United States — a decision that Trump's lawyers have appealed. Smith, hoping the U.S. Supreme Court would quickly resolve the matter, asked the justices to review it sooner rather than later. But his request was denied, which means that Trump's "presidential immunity" claims will remain in the lower federal courts for now.

In an article published on December 27, the Daily Beast's Jose Pagliery reports that Trump is "increasingly finding that the protections he was afforded as president don't exist for a former president."

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The U.S. Department of Justice (DOJ) has long had a policy against prosecuting a sitting president, but Trump hasn't been a sitting president since January 20, 2021.

Michael Waldman of the New York University Law School's Brennan Center for Justice told the Daily Beast, "There have been so few presidents as crooked as Trump. It's always been assumed you can prosecute someone after-the-fact."

After Richard Nixon resigned in disgrace because of the Watergate scandal in 1974, his predecessor, President Gerald R. Ford, granted him a presidential pardon. But Ford never claimed that Nixon enjoyed "presidential immunity" after leaving the White House.

When the U.S. Supreme Court declined Smith's request, they weren't saying that they would never rule on Trump's "presidential immunity" claim — only that they will get to it when they're ready. And Pagliery stresses that the courts on the whole have been leaning against Trump's "presidential immunity" argument.

"The Supreme Court has a growing body of recent seminal court decisions to consider —and they're largely related to Trump and his associates," Pagliery explains. "The most recent decision came December 18, when the 11th Circuit Court of Appeals weighed in on Fulton County District Attorney Fani Willis' massive conspiracy case against Trump and his underlings for their ploy to keep him in office after losing the 2020 election by forcing Georgia to flip its results. The three-judge appellate panel in Atlanta forcefully rejected an attempt by Trump's White House chief of staff, Mark Meadows, to yank the case out of state court by claiming the same kind of federal immunity that protects U.S. Postal Service mail carriers."

Pagliery continues, "Their 47-page opinion shredded any notion that Meadows—and by proxy, Trump — had any kind of legitimacy when they engaged in a campaign to intimidate Georgia Secretary of State Brad Raffensperger to flip 11,780 votes, spread lies about election fraud, and recruit fake electors whose shadow votes were meant to replace real ones at the Electoral College."

Read the full Daily Beast article at this link (subscription required).

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