Trump’s Immunity Case Is Weak—But He Doesn’t Need It to Prevail

The Supreme Court’s grant of review over Donald Trump’s claim of immunity from prosecution has thrilled his supporters. An elated Mr. Trump even thanked the Court in a social media post. The Justices’ intervention will delay until after July 4 his criminal case over the events of January 6, 2021, and could well preclude any verdict until after the November elections.

But before Mr. Trump counts his blessings, we have some sobering news: Mr. Trump, meet Mr. Hamilton. Alexander, that is.

Writing in The Federalist, which explained the new Constitution to its ratifiers in 1787-88, Hamilton threw cold water on the idea that a former President would enjoy immunity for his presidential acts. In Federalist No. 65, Hamilton explained that the Constitution would subject abusive presidents to impeachment while in office and prosecution after they left. Hamilton emphasized that impeachment was not a criminal proceeding, but only one to remove an executive officer guilty of “treason, bribery, and other high crimes and misdemeanors from office.” Unlike the practice in England, from which the Framers borrowed the mechanism, impeachment would not result in a prison sentence, fine, or any other punishment—those sanctions would be up to the criminal justice system.

Hamilton, the Founding generation’s most thoughtful writer on the Presidency, pressed this distinction between impeachment and criminal trial. He gave one reason why the Senate would try impeachments rather than the federal courts: Judges might very well have to try the president after his removal for the very crimes for which he was impeached. Hamilton wrote: “The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender.” Rather, “After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country”—in other words, impeached and removed from office—”he will still be liable to prosecution and punishment in the ordinary course of law.”

Thus, after being “disposed of his fame and his most valuable rights as a citizen in one trial”—the impeachment conviction trial before the Senate—he could “in another trial, for the same offense, be also … dispose[d] of his life and his fortune.” The judiciary should not be the trier in the impeachment trial to avoid the possibility that the impeachment conviction would essentially decide the second criminal trial before the same trier: “The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future office.”

Likewise, writing in Federalist No. 69, wherein he contrasted the new presidency with the more powerful British king, Hamilton observed: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.”

We know of no influential Founder who argued otherwise. Indeed, it would have made little sense for a president to have absolute immunity from prosecution, as such a protection only attached to a British king who owed his power to a hereditary office, rather than election. Furthermore, the courts would not need to invent an immunity to safeguard the office of the presidency, because the Founders repeatedly observed that prosecution lay at the core of the executive power. Future presidents would always control federal criminal cases and could protect the interests of the office when choosing whether to bring charges against a predecessor.

But the weakness of Trump’s immunity claim does not deprive him of important constitutional defenses that could prove fatal to Jack Smith’s case. Rejecting immunity means only turning aside the extraordinary claim that Trump cannot even be brought into court. Even after a Supreme Court loss on immunity, Trump will be able to claim that the prosecution violates his constitutional rights or powers, or that the charges legally do not fit his conduct on January 6.

Take, for example, the hypothetical that a president must have immunity so that a vengeful successor doesn’t prosecute him for a valid exercise of his constitutional authority. Suppose Trump had ordered a drone strike that killed an American citizen who had fought with al-Qaeda abroad—indeed, this happened under President George W. Bush. Could a future president, who disagreed with the war on terrorism, prosecute his predecessor for murder? Even without absolute immunity, Trump could defend himself on the ground that the charge—which represents the enforcement of a law passed by Congress—violates his constitutional authority as Commander-in-Chief. A court should always dismiss any charge that violates the separation of powers in this way.

Even if the Court were to find that Trump’s behavior on January 6 did not involve the exercise of a valid presidential power, he would still be able to bring legal challenges against the prosecution. Indeed, it is unlikely that the courts will agree that Trump’s actions fell within the ambit of official presidential acts. In a pending civil case for damages brought by injured Capitol Hill police officers, the lower courts have already found that Trump’s actions that day were those of a political candidate—the very definition of non-official.

Nevertheless, the charges against Trump could fail on their merits. Despite his public posturing, the special counsel did not accuse Trump of insurrection or sedition. Instead, he charged the former President with “fraud” against the United States, obstructing a congressional proceeding, and violating the constitutional rights of all voters for President in 2020.

Trump could deflect these accusations. The Justice Department usually brings fraud charges against defense contractors or Medicare providers for overcharging the government; in fact, the Supreme Court has warned the DOJ against bringing fraud charges against politicians in cases that do not involve money or property. Congress created the obstruction crime in the 2001 Sarbanes-Oxley law that responded to the 2000 financial scandals; it sought to punish those who interfered with congressional investigators.

This charge is a poor fit for Trump’s alleged effort to stop the electoral count on January 6. It is not clear that the electoral count, which occurs before a special meeting of the House and Senate, presided over by the vice president, under the Twelfth Amendment, would even qualify as a proceeding of Congress.

The voting rights charge is the most expansive, yet also the most ungrounded. This crime dates to the Reconstruction period when the Union sought to prevent revanchist Confederates from suppressing the votes of the freed slaves. The courts have also approved its use against not just those who block access to the ballot, but also those who dilute the effectiveness of a vote by interfering with a vote count.

But Trump did not prevent anyone from voting in 2020. Those voters chose electors who, under the Constitution, actually select the president. Trump attempted to persuade those electors to change their votes, to cause the vice president to reject allegedly fraudulent electoral votes, or to even pause the count and ask the state legislatures to reconsider their choice of electors. This may have represented an effort to interfere with the electoral count, but it did not deprive individual voters of their right to vote; if it did, then prosecutors could try to charge anyone who lobbies an elected member of a state or federal government to vote contrary to the wishes of their constituents.

None of these defenses will depend ultimately on whether Trump acted on January 6 as president—and therefore within his constitutional powers—or as a candidate for office—and therefore a private citizen. Instead, they will likely succeed because of Smith’s overreach in inappropriately expanding white collar criminal laws to cover January 6, combined with his timidity not to charge Trump with insurrection or sedition.

Trump should lose on his own over-broad immunity claim, but putting that aside will allow him to move forward on the strengths of his case, given how the prosecution has framed it.

John Yoo is a law professor at the University of California, Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. James Phillips is the Constitutional Government Initiative director and an associate professor at Brigham Young University’s Wheatley Institute.

The views expressed in this article are the writers’ own.