Breaking down Trump’s total immunity argument

The discussion of presidential immunity has taken center stage based on some recent arguments made by the former President Donald Trump as well as his lawyers. And there are a couple of different aspects to this that I do think are really important to discuss, particularly in the context of the double standard that is being generated between Donald Trump and Joe Biden when it comes to presidential immunity.

So let me tell you first what has been said. And then we’ll talk about the implications and what legal precedent tells us about this. On the one hand, Donald Trump and his lawyers have been arguing [that] Trump has immunity from criminal prosecution for anything that he did as president. And in a discussion with a panel of judges recently about exactly this issue, one of Donald Trump’s lawyers said that if Donald Trump were to order the assassination of a political rival, he would be immune from criminal prosecution unless he was impeached and convicted on impeachment.

In other words, in theory, a president could be criminally prosecuted for ordering the assassination of a political rival, but only if first, they are impeached and convicted on impeachment.

Now, that is an open question. But it does not seem to conform. It does not seem to conform with the law as it is currently understood. But there’s another problem for Donald Trump here in arguing complete and total presidential immunity, which is that if indeed Donald Trump has complete and total immunity for anything for which he is not impeached while president, then so does Joe Biden.

And the reason that that’s a problem is that increasingly, Donald Trump and the people around him are saying, we’re going to prosecute Joe Biden for this, and for this, and for this, and for that. If indeed Trump gets this total and complete criminal immunity, then so does Joe Biden. They can’t on the one hand, I mean, listen, they can, they are hypocrites, but at least if we want to think about this logically and critically, they can’t on the one hand insist that Trump’s immune no matter what he did, but that they’re going to prosecute Joe Biden, even absent a conviction on impeachment. And by the way, why would you prosecute Joe Biden? I still have found no evidence that he committed any crimes.

So let’s now break down this presidential immunity thing into sort of its component parts. Let’s start with one that’s not controversial. Can you sue a president civilly for things they did while President of the United States? That one seems uncontroversial. The Supreme Court has said no. You can’t sue a president for things that they did as President of the United States. That one, we’re not getting a lot of conflict or disagreement about.

What about actions committed outside the duty of president? Can the president be civilly sued while president for those actions? And the answer is very clearly yes. I’ll give you an example. In 1997, Bill Clinton was sued by Paula Jones, there was a case, Clinton V. Jones, the case took place while Clinton was president. And it was for actions that were not part of his presidential duties. And the Supreme Court held, that’s okay, you can do that.

The most controversial element of this is criminal prosecution for actions undertaken while in office. This is where the ongoing debate exists. There is indeed immunity from official acts while in office. But is there criminal immunity from acts while in office but not directly related to carrying out the office of the presidency? That’s what all of these arguments are about. And I don’t, I’m not a lawyer, I don’t take a position on this. It’s a legal question. It’s going to have to be determined by a court, probably the Supreme Court. What we must have now, this is a political opinion, not a legal opinion. We must have parity between how is this applied to Donald Trump and how is this applied to Joe Biden.

If a court were to determine what Trump’s lawyer said is true, which is unless you are convicted on impeachment, you’re immune from criminal prosecution, it must also be applied to Joe Biden, you can’t do it one way with one president and one way for the other.

And then lastly, we’ll go now to a fourth category, what we call post-presidential liability, which means once the president leaves office and does stuff, are they immune from criminal prosecution? The answer is clearly no. This one does not seem controversial. If you used to be president, you no longer are, you go out and commit a criminal act, an assassination, hiring a hitman, bribery, whatever. We are not seeing a big debate as to whether there is immunity there. The answer is that there is not.

So the big questions here are, number one, will Trump be granted this immunity? And number two, will the very people arguing for that immunity apply it equally to President Joe Biden? They certainly don’t seem to want to. We will see. Let me know your thoughts.