Legal expert breaks down '2 questions' that will determine if SCOTUS hears Trump immunity claims

22 August 2023

Former President Donald Trump, now facing four criminal indictments, has often made claims of "executive privilege" or presidential immunity when defending his conduct. In special counsel Jack Smith's prosecution of Trump's efforts to overturn the 2020 election results, Trump has argued that his post-election activities occurred when he was still president — and therefore, are exempt from criminal prosecution.

During a recent appearance on NBC News' "Meet the Press," Trump attorney John Lauro, argued, "Everything that President Trump did was while he was in office as president. He is now immune from prosecution for acts that he takes in connection with those policy decisions."

In an op-ed published by Politico on August 22, former federal prosecutor Kimberly Wehle — now a law professor at the University of Baltimore — analyzes Trump's claims of presidential immunity. Wehle has been a scathing critic of Trump but points out that his "presidential immunity" claims could end up being examined by the U.S. Supreme Court.

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"Trump has raised broad claims of presidential immunity in litigation before, with mostly poor results," Wehle explains. "Still, the argument is not entirely frivolous, in part because the Supreme Court has only weighed in on presidential immunity in a handful of cases, and none of those involved indictments of a former president. Even if Trump loses his motions to toss out the indictments on immunity grounds at the trial court level, which is likely, the Supreme Court would almost certainly vote to hear the issue on appeal given the unprecedented nature of these cases and the stakes for the presidency and the country."

Wehle describes the "issue of how much legal immunity a president or former president enjoys" as a "somewhat unsettled area of constitutional law."

"Unlike for members of Congress, who are expressly immune from civil or criminal liability for official acts under the Constitution's Speech or Debate Clause, the Constitution says nothing whatsoever about presidential immunity," Wehle notes. "And there are only a few Supreme Court decisions that provide precedent for deciding the issue."

The law professor adds, "One of the first was a unanimous Supreme Court decision in Mississippi v. Johnson in 1867 which held that courts could not force the president to enforce the post-Civil War Reconstruction Acts, which then-President Andrew Johnson had vetoed…. Since then, the Supreme Court has offered some additional guidelines for understanding presidential immunity, but none definitively resolve whether all of Trump's relevant conduct in office is fair game for the criminal justice system — or whether some sorts of decisions are immunized."

Wehle argues that "legal analysis" of Trump's "presidential immunity" claims "will likely boil down to two questions."

"The first is whether, by asking DOJ officials to declare the 2020 election 'corrupt,' for example, or by initiating 'catch and kill' hush money payments from the Oval Office in order to bury negative publicity, Trump was acting within the 'outer boundaries' of executive policy-making authority," the former federal prosecutor writes. "If so, certain acts could conceivably be immune from prosecution or otherwise excised from the scope of the criminal indictments."

Wehle continues, "The second question is whether greenlighting criminal indictments that implicate even borderline conduct would set a bad precedent that could hamper future presidents from performing their constitutional duties. Even if what Trump did as president was unacceptable, in other words, if it fell within the discretion that presidents need in order to do their jobs, it could be protected."

Find Kimberly Wehle's full Politico op-ed at this link.

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