Trump Continues to Make His Case for Presidential Immunity - Does It Hold Water?

Justin Lane/Pool Photo via AP

As former President Donald Trump's July 11 sentencing draws closer, following his conviction on all felony counts of falsifying business records, Trump continues to make his case for presidential immunity.

Simple question: Does Trump's argument hold water?

Not-so-simple answer: There is no simple answer.

First, it's important to remember that Trump still faces other federal charges in at least two cases. 

One is in Florida, where Trump is accused of illegally retaining classified documents after leaving the presidency and obstructing government efforts to retrieve them. In the second case, in Washington, D.C., the former president is accused of plotting to overturn the results of the 2020 election. He faces similar election-tampering charges in a third case brought by a local prosecutor in Georgia.

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So, let's be clear here. 

My intent is neither to litigate Trump's pending cases nor to relitigate his prior conviction. Rather, it's to lay out his case for presidential immunity, and the implications of it.

Trump's basic argument is that he — and all future presidents — should be protected from criminal prosecution by blanket presidential immunity, including after leaving office, which he reiterated in a recent statement.

Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America. Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation, after they leave office.

Trump laid out a hypothetical scenario as part of his argument. 

This could actually lead to extortion and blackmail of a President. The other side would say, ‘If you don’t do something, just the way we want it, we are going to go after you when you leave office, or perhaps even sooner.’ A President has to be free to determine what is right for our Country with no undue pressure.

Do Trump's argument and the potential scenario he painted hold water? Meaning: Should a president be granted complete presidential immunity from anything he or she does that leads to criminal charges?

While Trump has argued that legal scholars agree with him, the question of blanket immunity remains in doubt. Here's more:

The Supreme Court is considering the presidential immunity proposal from Trump’s legal team in the case related to his handling of the January 6 riot.

During oral arguments, the Supreme Court justices seemed open to the idea that some presidential actions could be covered under a kind of presidential immunity, but seemed hesitant to say that immunity would be wholesale.

During legal arguments earlier this year, Trump’s lawyer raised questions about whether former President Barack Obama could be prosecuted for overseas drone strikes that killed Americans.

Or could President Joe Biden be prosecuted for failing to enforce existing immigration law?

While Trump has repeatedly made his case on this issue, likely only the Supreme Court could step in to accept that argument and broadly apply it on Trump’s behalf.

Finally, Trump argues, without blanket presidential immunity, "the presidency as we know it will no longer exist."

Without Immunity, the Presidency, as we know it, will no longer exist. Many actions for the benefit of our Country will not be taken. This is in no way what the Founders had in mind. Legal Experts and Scholars have stated that the President must have Full Presidential Immunity. A President must be free to make proper decisions. His mind must be clear, and he must not be guided by fear of retribution!

A decision from the Supreme Court is expected before the end of June.

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As I said at the beginning, the question is simple: Does Trump's immunity argument hold water? As I also said, there is no simple answer. Several questions beg to be asked. 

Who would get to decide whether future presidents make "proper decisions" in the best interests of the United States or in the best interests of themselves or their interests?

If presidents and former presidents have blanket presidential immunity, could they abuse that immunity by making improper decisions to protect themselves, their family members, or anyone else?

If presidents and former presidents can be held responsible for decisions they make (made) or actions they take (took), might the lack of blanket immunity lead some to second thoughts about potentially nefarious decisions or actions?

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Finally, it is important to bear in mind that such blanket presidential immunity would apply to presidents of both parties. 

Do we really want the likes of Joe Biden, or any future Democrat president, protected from potential prosecution? (Think: "the last three and a half years.")



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