Republished with permission from The Conversation, by Stefanie Lindquist, Arizona State University

Former President Donald Trump has claimed he is immune from prosecution—specifically on the federal charges that he tried to subvert the results of the 2020 presidential election. He says that his actions in connection with the 2020 election were part of his official duties, and he also argues that because he was not convicted during either of his impeachments, he cannot be tried in a criminal court for his actions.

The trial judge, Tonya Chutkan, rejected both of those arguments on Dec. 1, 2023, and Trump has appealed her ruling to the U.S. Court of Appeals for the District of Columbia Circuit, which plans to hear the case on Jan. 9, 2024.

Special counsel Jack Smith, who is prosecuting the case, had asked the Supreme Court to step in, even ahead of the appeals court. He argues that waiting for the appeals process—and an almost certain application afterward to the Supreme Court for review—will delay the trial too long. He says the delay would deprive both Trump of a speedy trial and the American public of a long-awaited resolution of the disputes around the 2020 election—perhaps until after the 2024 presidential election.

The Supreme Court on Dec. 22, 2023 declined to step in, allowing the normal appeals process to move forward. The appeals court’s schedule requires a third round of briefing by both parties—Trump and Smith—to conclude by Jan. 2, with oral arguments slated for Jan. 9.

What’s at stake? In broad strokes, Trump’s claim appears to suggest a way he hopes to avoid any potential legal consequences of his actions. The legal issue is more narrow, but with a similar effect: If Trump’s claims are upheld, the prosecution of a former president would still be hypothetically possible, but practically extremely difficult, and only in a very limited set of circumstances.

As a scholar of constitutional law, I know that both questions will have to be resolved, either by the Supreme Court or the appeals court—or both—before Trump’s trial can proceed. Let’s look at each in turn.

Official Presidential Election Deception?

First, Trump argues that the federal charges, including allegations that he defrauded the United States by promoting a conspiracy to block certification of the 2020 election results, are invalid because he was acting in his official capacity as president while taking the actions alleged in the indictment. A long-standing Supreme Court precedent provides federal officials with immunity from lawsuits for actions they took as part of their official duties.

The current precedent stems from a 1982 Supreme Court decision, in Nixon v. Fitzgerald, which was a civil lawsuit filed by a former Air Force analyst whom Nixon ordered fired about a year after the analyst testified to Congress about an aspect of defense spending. The ruling in that case was clear: Presidents cannot be sued for actions that fall within what the court called the “outer perimeter” of their official responsibilities.

The court did not define the “outer perimeter” in that case, but some clarity arises from a more recent case in which Trump himself was sued for civil damages based on his actions on Jan. 6, 2021. A federal appeals court ruled that Trump’s campaign activities were not official presidential actions, because campaigning is done for the purpose of seeking an office—not as part of the duties of the president.

In several of the lawsuits he filed challenging election results in the wake of the 2020 election, Trump himself said he was acting “in his personal capacity as a candidate,” as distinct from his official capacity as president.

Now, though, Trump claims that whether or not he was acting as a candidate on Jan. 6, his comments on “matters of public concern” fall within the scope of his presidential duties.

His claim is new, legally speaking, because the Nixon v. Fitzgerald ruling involved a civil case, not a criminal one. And the Nixon case did not address whether a president’s official duties include running for reelection.

The remaining legal question boils down to the vague idea of an “outer perimeter” of official presidential responsibilities. There is one Supreme Court ruling that offers a clue here: In United States v. Nixon in 1973, the court ruled that the presidential privilege of confidential consultation with advisers had to yield to “the fair administration of criminal justice.” The court upheld a subpoena Nixon had been fighting.

Is Impeachment Acquittal Relevant?

Second, Trump claims the Constitution allows a former president to be prosecuted in criminal court for actions taken while in office only if he was impeached by the House of Representatives, as Trump was twice, and convicted by the Senate, which did not happen in either case.

The pertinent part of the Constitution says:

“Judgment in Cases of Impeachment shall not extend further than removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Most lawyers agree that a sitting president cannot be indicted or prosecuted while still in office. The Supreme Court has never directly addressed this question, but the Office of Legal Counsel—a part of the Justice Department—concluded in 1973 and 2000 that prosecuting a sitting president would be a distraction from nationally important duties and responsibilities, and so should be delayed until after the president leaves office.

Trump cannot make that argument because he is no longer president. Instead, he claims that the language of the Constitution says the framers intended potential prosecution only of people who were both impeached and convicted.

However, the Office of Legal Counsel’s research made that clear too: “Neither the Impeachment Judgment Clause nor any other provision of the Constitution precludes the prosecution of a former President who, while still in office, was impeached by the House of Representatives but acquitted by the Senate.” Another memo from the office came to a similar conclusion, while admitting “the question is more complicated than it might first appear.” Although these findings do not constitute legal precedent, they nevertheless carry considerable weight in legal circles.

In fact, the office’s analysis found that the language of the Constitution was written specifically to allow prosecutions of former federal officials, whether or not they were convicted during an impeachment trial. So, it seems to me unlikely that an appeals court, or the Supreme Court, would adopt Trump’s interpretation of the clause.

Beyond This Specific Case

The core dispute will likely focus on what the “outer perimeter” of presidential duties are, as well as how expansive presidential powers should be. Though Trump appointed three of the D.C. appeals court’s 11 active judges and three of the Supreme Court’s sitting justices, they have not uniformly supported him in prior cases. In a case of this magnitude, they will know that the public is watching and wondering about the strength of that defining principle of American democracy: No person is above the law.

This story has been updated to reflect that the U.S. Supreme Court declined on Dec. 22, 2023 to take the immunity case before it is argued in a federal appeals court.

Stefanie Lindquist, Foundation Professor of Law and Political Science, Arizona State University

This article is republished from The Conversation under a Creative Commons license. Read the original article.