How Trump’s private ploy to expand immunity would transform him 'into a King George': report

30 January 2024

As former President Donald Trump faces several investigations and criminal prosecutions — amid his run for presidency — the MAGA hopeful and his lawyers argue that Trump maintain "presidential immunity."

In a January 24 op-ed, The Daily Beast's Shan Wu wrote, "Let's make it simple: Presidents, police officers, and pedophile priests are not immune from criminal prosecution. No court has ever ruled that they are. Nor does the Constitution grant such immunity. Trump appears to think that the doctrine of qualified immunity — which is a form of immunity that protects government officials, including police, judges, legislators, and prosecutors, from being sued civilly in lawsuits over the performance of their duties — also protects these categories of officials from criminal prosecutions. But he's wrong."

However, the former president plans put his immunity belief into action if elected in November, according to an exclusive Rolling Stone report.

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Two sources have spoken with former President Donald Trump over the last couple of months, Rolling Stone reports, about his plan "to expand a Nixon-era memo from the Justice Department‘s Office of Legal Counsel that has effectively prohibited the department from prosecuting sitting presidents for decades."

Furthermore, the publication reports, "Some Trump advisers and others familiar with these discussions say they plan to have a thoroughly Trumpified OLC issue a new memo, which would advise that the department should prohibit the prosecution of presidents even after they leave office. (The existing Department of Justice memo is generally interpreted as applying to presidents only when they are in power.)"

Rolling Stone also notes:

The 1973 OLC memo that the Trumpworld elite hopes to expand upon lacks the force of law but as a matter of policy, administrations since the Nixon era have deferred to it as the settled guidance for how to handle potential presidential crimes while in office. The memo, issued amid a special prosecutor’s investigation into President Richard Nixon’s Watergate scandal, concluded that the department should not indict 'a sitting president' because criminal proceedings 'would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.'

The sources told the publication that Trump's team's goal is to "prevent a repeat" of the slew of prosecutions the former president has faced since the end of his term. "Their preliminary plan would effectively place the president above the law, both in office and outside of it, for any acts even vaguely related to his official duties."

Rolling Stone emphasizes:

The move would face numerous hurdles, and a future administration could easily reverse such a memo. But the effort, if consummated in another Trump term, would be an attempt to leverage the deference many administrations have given to OLC opinions. Even if the planned memo were rescinded, it would still offer a rhetorical and political fig leaf for Trump to use to fight future prosecutions. It’s also not outside the realm of possibility that a future president might appreciate the idea of having a permanent immunity shield for life, and choose to maintain it.

Former Trump White House attorney Ty Cobb, who calls the MAGA hopeful "inherently evil," told Rolling Stone, "During the Trump-Russia investigation, OLC memos played a consequential role. I and my team, as well as the Mueller lawyers, took them seriously and they framed the basis for the cooperation of the White House in a way that preserved executive privilege. Typically, OLC opinions are sought only where the case law does not already provide an answer as to a constitutional issue. A potential new memo expanding presidential authority or immunity would not be taken seriously by anyone concerned with, among other things, the rule of law or the Constitution."

The former Trump lawyer emphasized, "An opinion like that from the Department of Justice would constitute an attempt to turn Donald Trump into a King George, which the framers sought desperately to avoid. The Constitution was written to prevent something precisely like that from ever happening. At the end of the day, an OLC memo like that would likely be ineffectual and would be jettisoned if ever litigated and would not survive a subsequent competent attorney general. Ethical concerns about the integrity of any author of such an opinion would be well-founded. No one in history has stress-tested the Constitution the way Trump has, and what he and many of his people are clearly trying to do doesn’t have anything to do with presenting a legitimate legal argument. They can argue Donald Trump is above the law and can execute political rivals, and they can put it in writing, but it won’t make it so."

Rolling Stone's full report is here (subscription required).

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