As the 2024 Election Season approached former President Donald J. Trump was hit with 91 charges for various criminal allegations. While the big ones, according to the talking heads of the media, were insurrection and attempting to overturn an election, technically none of the indictments were specifically regarding those alleged crimes. His political enemies are practicing a game of “death by a thousand cuts.” As Trump has worked to navigate the weaponized legal minefield thrown at him, he made a statement that the press has gone nuts over. He has claimed he has presidential immunity. None of the charges against him, as a result, are legal.
The questions at hand, then, are simple. Is Trump correct? Does he have presidential immunity? Does the United States Constitution address such an issue?
The answers are “yes,” “yes,” and “yes.”
As an instructor regarding the Constitution I had never really looked at this issue, before. I am very familiar with the clause that relates to Trump’s immunity question, but had never recognized it as a clause regarding immunity, before. I never had to. This is unprecedented. Never before in the history of this country have we had a former president attacked with multiple lawsuits while out of office, and while celebrated as the leading candidate in the next Presidential Election. Typically, in history, if a President of the United States serves two terms, they are back-to-back. Only once, prior to Trump, did the occasion of divided terms emerge. Grover Cleveland was the only President to leave office after serving four years only to return for a second term four years later. He was the 22nd President from 1885-1889, and the 24th President from 1893-1897. A bachelor going in, Cleveland married 21-year-old Frances Folsom in 1886, making him also the only President to get married while serving as President.
Cleveland was the first Democrat elected to office after the end of The War Between the States. Today, Cleveland would probably feel more comfortable in the Republican Party. He pursued policies barring special favors between government and economic groups, writing, “Federal aid in such cases encourages the expectation of paternal care on the part of the Government and weakens the sturdiness of our national character.”
Barring Franklin Delano Roosevelt’s 635 vetoes, Cleveland vetoed more legislative bills than any other President with 584. While liked by both parties, Cleveland’s attitude was that government’s job was to interfere as little as possible with the private sector, and the daily lives of the citizens of the United States, often placing him at odds with proposed legislation. He challenged big money, angered the railroads by investigating their government grants of real estate, forcing them to return 81,000,000 acres, and in 1887 he called for Congress to reduce tariffs. Never once during his presidency did he hesitate to do what he thought needed to be done, because at no point was he worried that his political opponents might go after him legally after he departed from office.
Could you imagine how carefully a President of the United States would need to step if upon the end of his term as President knew the vultures populating his opposition would be ready to strike with lawsuit after lawsuit to destroy him?
From a judicial standpoint immunity has been ruled upon a number of times. In Nixon v. Fitzgerald (1982) the Supreme Court of the United States ruled that the President has absolute immunity from civil damages regarding conduct within the “outer perimeter” of his duties. Clinton v. Jones (1997), however, disallows immunity for suits arising regarding conduct by the individual prior to taking office as President of the United States.
Three Presidents have been criminally investigated while in office, Richard Nixon, Bill Clinton, and Donald Trump. Only Trump, however, has been pursued prosecutorially after leaving office. Nixon would have been, one might suggest, but about a month after taking office President Gerald Ford pardoned Nixon, granting, “a full, free, and absolute pardon…for all offenses against the United States…committed or may have committed or taken part in.” The pardon likely saved Nixon from protracted and expensive legal battles that would have likely never found impartial juries.
The United States Constitution, the Supreme Law of the Land, is where the real hammer against going after a President lies. At the end of Article I, Section 3 the Constitution discusses punishment for conviction of impeachment, and the language provided is clear:
Judgment in Cases of Impeachment shall not extend further than to 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.
Impeachment is a political trial. If an individual is convicted of an impeachment, they are not walked out of office in handcuffs and an orange jumpsuit. According to the clause in Article I, Section 3 of the United States Constitution the worse punishment if convicted by impeachment is removal from office and the inability to hold office ever again. Criminal punishment may only be handed out after a criminal conviction in a criminal court (civil would be the same). And, the clause clearly states that in order to be pursued criminally they must first be convicted by the Senate in an impeachment case for the same offense. The clause is in Article II, so it is specifically regarding the President of the United States.
The good news for Trump is that because he was charged (impeached), but not convicted, immunity covers his entire presidency. The good news for Biden is that based on the constitutional argument regarding immunity, if he is able to escape impeachment during his time in office he will also be immune from subsequent criminal prosecution.
The reality is, if we are to follow the text of the United States Constitution, every single criminal charge levied against Donald Trump regarding actions he took while President of the United States is unconstitutional, and all of the weaponization of the judicial system against the man needs to legally stop this instant. Unfortunately, we are dealing with authoritarian tyrants who could care less about the law, nor the Constitution, so the prosecutorial witch-hunt against Trump will continue…illegally.