By: Yuvraj S. Tuli
Volume IX – Issue I – Fall 2023
“The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812.” Judge Patricia Millet [1]
“Stated simply, the primary takeaway from the past 250 years of recorded American history is that Presidents are not kings” Justice Ketanji Brown Jackson [2]
Introduction
January 6, 2021 marked the most significant and tragic days in the history of the United States. A mob “professing support for then-President Trump violently attacked the United States Capitol” with the intent to corruptly prevent Congress from convening in a Joint Session to fulfill its duties to certify the 2020 electoral votes for President and Vice President. [3] The events of January 6 did not start from a rally the hours before the attack, it started on election night in 2020. Attorney General Merrick Garland appointed Jack Smith as special counsel to investigate in part “whether any person or entity violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.” [4] Following his investigation, Special Counsel Smith brought forward an indictment that alleged that the defendant, despite knowing he had lost the election, had engaged in the scheme for him to remain in power. To enact his goal to stay in power, the defendant pursued a wholesale conspiracy to prevent the lawfull certification of the election results. The indictment’s allegations were historic in nature, as it alleged that a former President was responsible in effect to subvert the constitutional structure of the United States. As a result of its historic nature involving a former president, important questions of presidential power and immunity were raised. However, there is an abiding principle of providing equal justice under the law that is at the heart of the system the founders established. In Georgia v. Brailsford 3 U.S. 1(1794), Chief Justice John Jay explained that “justice is indiscriminately due to all, without regard to numbers, wealth, or rank.” [5] This has been the bedrock principle of the system of justice in the United States; it applies to government officials such as members of the U.S. Congress, U.S. Senators, Supreme Court Justices, Federal judges, Federal cabinet secretaries, Vice Presidents, and even Presidents.
I. Indictment
In the United States v. Donald J. Trump (1:23-cr-00257), Special Counsel Jack Smith brought an indictment which charges former President Trump for his actions surrounding January 6th. The indictment charges Trump with four counts. The first count charges the defendant to be in violation of 18 U.S.C. § 371 (conspiracy to defraud the United States). [6] The scheme the indictment presents is that Trump in his reelection campaign colluded with individuals to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected, counted, and certified.” [7] Specifically, the indictment went to explaining five ways this conspiracy was implemented: (1) “...using deceit toward state officials to subvert the legitimate election results in those states,” [8] (2) “...using deceit to organize fraudulent slates of electors in seven targeted states, and cause them to send false certificates to Congress,” [9] (3) “leveraging the Department of Justice to use deceit to get state officials to replace the legitimate electoral slate with electors who would cast their votes for the defendant,” [10] (4) “attempting to enlist the Vice President to fraudulently alter the election results during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to obstruct the proceeding,” [11] (5) “and exploiting the violence and chaos that transpired at the United States Capitol on January 6, 2021.” [12] The second and third count stem from the first conspiracy count and charge the defendant with obstructing the certification of the results. The final count charges the defendant with conspiracy to violate the right to vote.
In reaction to the indictment, the defendant's legal team has initiated a countermove by filing a motion to dismiss the charges, citing the doctrine of presidential immunity. [13] The focal point of their argument hinges on a careful examination of whether, under the precedent set by Nixon v. Fitzgerald, the defendant enjoys immunity from criminal prosecution. Nixon v. Fitzgerald, a landmark Supreme Court case, established a qualified immunity for the president, shielding them from civil damages for official acts while in office. [14] The defendant's counsel contends that this immunity extends to criminal charges as well, forming a crucial defense strategy. The forthcoming essay on this matter will delve into the nuanced interpretation of whether Nixon v. Fitzgerald extended presidential immunity in the context of criminal allegations in regards to the facts alleged in this indictment.
II. Analysis of the Claims
i. Nixon v. Fitzgerald civil liability immunity does not extend to criminal non-of icial conduct like that alleged in the indictment
In Richard Nixon v. A. Ernest Fitzgerald 457 U.S. 731 (1982), the court affirmed that a sitting President can not be liable for civil damages involving any actions that were within his official duties. [15] The legal landscape surrounding the indictment of the defendant invokes a critical analysis of Nixon v. Fitzgerald and its implications for presidential immunity. While Nixon v. Fitzgerald established a shield of immunity against civil liability for official acts performed during a president's tenure, it does not extend to immunize a sitting or former president from criminal charges arising from non-official conduct. The indictment against the defendant involves allegations of a conspiracy to defraud the United States through a series of actions that transcend the scope of official duties. The defendant's involvement in a conspiracy to defraud the United States represents actions distinct from the routine responsibilities associated with the presidency. These activities, such as attempting to overturn election results through deceit and encouraging actions that disrupt the democratic process, fall outside the realm of official office duties. As a result, Nixon v. Fitzgerald's protective shield does not encompass the specific criminal conduct alleged, emphasizing the crucial distinction between actions integral to the office and those that transgress its legitimate boundaries. Justice Byron White, joined by Justices Brennan, Marshall, and Blackmun, supported this view by stating “But there is no contention that the President is immune from criminal prosecution in the courts under the criminal laws enacted by Congress, or by the States, for that matter. Nor would such a claim be credible. The Constitution itself provides that impeachment shall not bar ‘Indictment, Trial, Judgment and Punishment, according to Law.’ Art. I, § 3, cl. 7” [16] Richard Nixon v. A. Ernest Fitzgerald 457 U.S. 731 (1982). Furthermore, the crucial concurring opinion of the Chief Justice Warren Burger, which served as the fifth vote, explained: “The dissents are wide of the mark to the extent that they imply that the Court today recognizes sweeping immunity for a President for all acts. The Court does no such thing. The immunity is limited to civil damages claims. Moreover, a President, like Members of Congress, judges, prosecutors, or congressional aides — all having absolute immunity — are not immune for acts outside official duties. Ante at 457 U. S. 753-755. Even the broad immunity of the Speech and Debate Clause has its limits.[fn3]” [17] Chief Justice Burger explained in this decision that prosecution could be open for acts the President committed outside his constitutional official duty because he is not immune for non official acts like that explained in the indictment. The court in Nixon v. Fitzgerald, 457 U.S. 731,753-54 (1982), only held that the President is immune for civil acts he committed in his official capacity, the court further explained that the President is clearly not immune for acts outside of his official duties. This expression is echoed in the binding opinion of the Supreme Court in its majority opinion in Nixon v. Fitzgerald, where it explained that “When judicial action is needed to serve broad public interests — as when the Court acts not in derogation of the separation of powers, but to maintain their proper balance, cf. Youngstown Sheet & Tube Co. v. Sawyer, or to vindicate the public interest in an ongoing criminal prosecution, see United States v. Nixon— the exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a President’s official acts, we hold it is not.” [18] This court case essentially held that the President can be held responsible for non official acts.
The above analysis makes clear that the President does not have immunity against acts that are outside his official duties pursuant to Nixon v. Fitzgerald. Additionally, the court in Nixon made clear they declined to extend the civil immunity to criminal acts. History, constitutional structure, and precedent make it clear that the president does not have immunity from criminal prosecution for non official acts. In the history of the United States, it has been accepted that the President is not above the law. This principle has been reaffirmed by the Constitution, history, and the Supreme Court. Alexander Hamilton in Federalist 69 described that a former president has no immunity when he stated that “and would afterwards be liable to prosecution and punishment in the ordinary course of law.” [19] The founders specifically rejected a king like immunity that President Trump’s motion calls for. It was one of the founder’s primary complaints that the “The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.” [20] They rejected creating this inviolability for the President of the United States when they stated “the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware.” [21] This view was further reinforced by the transcript from the Constitutional Convention. In a debate between Franklin, and Wilson, the founders debated in the context of the pardon power what would happen if “the President may himself be guilty. The Traytors may be his own instruments.” [22] Wilson argued that if the President “....himself a party to the guilt he can be impeached and prosecuted.” [23] The founding history clearly rejects the premise that immunity prevents a former president from being prosecuted, as further illustrated by Federalist 77. Hamilton in describing the checks on presidential power stated that the President can be tried “by subsequent prosecution in the common course of law.” [24] Additionally, this principle was recognized by the courts in the trial of Aaron Burr, where it was held that “[T]he president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” [25]
The President has a unique position in the constitutional structure, which makes the office he holds responsible for the leadership of the country. The presidency is the only branch of government which is unitary and independently accountable to all three hundred million Americans every four years. It is an office that requires constant vigilance and care, because the President is responsible for the protection of the country. The President is responsible for setting the direction of domestic affairs, conducting foreign affairs, and leading the country through war and pandemic simultaneously. These duties along with the distinct features of the Presidency require the president’s undivided attention always. While the Nixon court importantly recognized the principle that president is not immune for non official acts, it also stated that still “the President occupies a unique position in the constitutional scheme,” [26] and that while “exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” [27] The Supreme Court has in Richard Cheney v. United States 542 U.S. 367 (2004) explained that due to the unique structure of the Presidency that it is important to maintain “....unnecessary intrusion into the operation of the Office of the President.” [28] The court further noted that “special considerations control when the Executive Branch’s interests in maintaining the autonomy of its office,” [29] and that the President’s “constitutional responsibilities and status [are] factors counseling judicial deference and restraint.” [30] While this balancing approach by the court was created to give deference to the responsibilities of the office, in this case the facts alleged in the indictment tilt the balance against the President receiving immunity. In this case, the indictment alleges a scheme so brazen that at its core it aimed to subvert the constitutional order, the interests of the criminal process do prevail over the special considerations of the Executive Branch.
Being elected President is not a get out of jail free card, but instead,a solemn honor that requires one to faithfully defend the constitution. The conduct that was charged in the indictment by Special Counsel Jack Smith does not in any way reflect official duties of the office, instead the conduct that is charged are plainly efforts to undermine the constitutional order by unlawful means of corruption and deceit. This question was considered in a different context, but which guides what the official duty of the president is in the State of Georgia v. Mark R. Meadows No.1 :23- CV- 03621- SCJ. In an opinion by Judge Jones, he stated Mark Meadows’s actions were political and his actions “suggests that Meadows was not acting in his scope of executive branch duties during most of the Overt Acts alleged.” [31] Additionally, the specific argument raised by President Trump was his actions were official actions such as communicating with the vice president, and state officials “... about the federal election and the exercise of their official duties with respect to the election” [32] were a part of his official duties as President of the United States. This question was recently considered in a different light by the DC Circuit as a part of Blassingame v. Trump where the court held in a civil nature that “campaign to win re-election is not an official presidential act.” [33] The court went on to explain that activities such as the speech by President Trump on January 6th which was “funded and organized by his re-election campaign committee, he is not carrying out the official duties of the presidency. He is acting as office-seeker, not office-holder— no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office.” [34] While not addressing the direct question of criminal immunity, the court did provide guidance that it viewed President Trump’s action surrounding January 6th as non officials acts which were not part of his duties as President of the United States.
The arguments by the defendant in the motion aim to use the court’s precedent in Nixon v. Fitzgerald to gloss over the defendant's conduct as official actions. Individually, and collectively the indictment alleges with sufficient details that the steps taken by the defendant are not part of the oath of office of the presidency. As a result, Fitzgerald would not support the dismissal of the indictment based on immunity as the acts of the defendant are outside the bounds of his office. Additionally, the court in Fitzgerald limited its order to civil cases, and declined to adopt a criminal immunity as the defendant calls for. For the foregoing reasons, this indictment should not be dismissed based on the doctrine of Fitgerald presidential immunity.
Endnotes
[1] Donald J. Trump v. Bennie G. Thompson 20 F.4th 10 (D.C. Cir. 2021)
[2] Comm. on Judiciary v. McGahn, 415 F. Supp. 3d 148 (D.D.C. 2019)
[3] Donald J. Trump v. Bennie G. Thompson 20 F.4th 10 (D.C. Cir. 2021)
[4] Appointment of John L. Smith as Special Counsel, Office of the Attorney General Order No:5559-2022 (2022)
[5] Georgia v. Brailsford 3 U.S. 1 (1794)
[6] United States v. Donald J. Trump, 1:23-cr-00257, (D.D.C.)
[7] Ibid
[8] Ibid
[9] Ibid
[10] Ibid
[11] Ibid
[12] Ibid
[13] Motion to Dismiss Based on Presidential Immunity ECF 74, United States v. Donald J. Trump, 1:23-cr-00257, (D.D.C.)
[14] Nixon v. Fitzgerald, 457 U.S. 731 (1982)
[15] Ibid
[16] Ibid
[17] Ibid
[18] Ibid
[19] The Federalist Papers : No. 69
[20] Ibid
[21] Ibid
[22] Constitutional Convention, Tuesday September 15, 1787
[23] Ibid
[24] The Federalist Papers : No. 77
[25] United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807)
[26] Nixon v. Fitzgerald, 457 U.S. 731 (1982)
[27] Ibid
[28] Richard Cheney v. United States 542 U.S. 367 (2004)
[29] Ibid
[30] Ibid
[31] The State of Georgia v. Meadows, 1:23-cv-03621, (N.D. Ga.)
[32] Motion to Dismiss Based on Presidential Immunity ECF 74, United States v. Donald J. Trump, 1:23-cr-00257, (D.D.C.)
[33] James Blassingame v. Donald J. Trump No. 22-5069 (D.C. Cir. 2023)
[34] Ibid