It is a busy legal week in Washington, D.C., for former President Donald Trump.
On Thursday, the Supreme Court heard oral arguments in Trump v. Anderson. The case addresses the Colorado Supreme Court’s decisions excluding Trump from the primary ballot in that state. The outcome, of course, will have significant ramifications for efforts to do the same in other states across the country.
But on Tuesday, another important decision was released in United States v. Trump. Trump faces criminal charges in relation to his actions in the riots that took place at the U.S. Capitol on Jan. 6, 2021. His lawyers moved to dismiss the charges, saying Trump possessed “absolute immunity” from prosecution for all “official acts” taken as president, which he claimed the events of Jan. 6 included.
The three-judge D.C. Circuit Court panel unanimously rejected his immunity claim. They were right. In their reasoning, they did more than discuss the merits of Trump’s particular claim. They also gave further guidance on the nature of the presidency and its relation to the Constitution.
The essence of the legal debate concerned how the constitutional separation of powers operates. Trump’s lawyers claimed that neither a prosecutor nor a judge could “sit in judgment over a president’s official acts.” That simply is not true. In past cases, including the seminal decision of Marbury v. Madison (1803), courts have said that some actions of the president lay beyond judicial review. Those immune actions concern areas where existing law gives the executive discretion to choose his actions. But when the law prescribed or proscribed certain actions, the potential violation of those stood firmly within judicial purview.
Consider the Supreme Court’s rejection of President Joe Biden’s student debt relief program. In this instance, criminal statutes do not grant discretion. Instead, they prescribe certain conduct.
Second, presidents for two centuries have been subject to judicial process, from subpoena in the Aaron Burr case in 1807 to demands for evidence such as in Watergate. There has been a good argument for some kind of presidential privilege in these proceedings. Not every judicial demand has been entirely or even partially successful. But this history hardly establishes a precedent of absolute immunity.
Trump made another related argument the court also rejected. He said that criminal prosecutions of a former president would undermine how future presidents enforced the law due to fears of consequent legal action. Yet the Constitution itself anticipates that the president could be subject to judicial proceedings in addition to impeachment. Trump’s lawyers made this case during his 2021 impeachment and trial, pointing to the judicial forum as the better one to determine his guilt or innocence.
Moreover, the president’s ability to do his job must not eliminate other branches’ ability to do their own. The judiciary holds the task of administering justice — a responsibility as constitutionally mandated as the president’s — to execute the law. Blanket immunity could deeply thwart the courts’ constitutional role.
In addition, we must remember the president’s core job pertains to taking care that the laws be faithfully executed. Yet Trump asks for the laws not to be enforced at all against himself.
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The real limits on legal action against presidents lay outside Trump’s case. The circuit court opinion noted that presidents in the past have been granted immunity from civil suits related to official executive acts. There also have been accommodations for legal proceedings taking place while the president remains in office or for national security secrets. The first guards against frivolous lawsuits by individuals. But in this case, the prosecutions come from government officials, a smaller pool, and one more regulated in their proceedings. The second allows the president to prioritize his constitutional duties and protect against endangering the country. Here, Trump no longer holds federal office, and no national security secrets are at issue.
The Circuit Court’s decision does not declare Trump guilty of the charges. In fact, it is very likely, if this case goes to a final verdict, that Trump will be acquitted. Trump’s actions on Jan. 6, whatever their moral turpitude, likely do not violate the laws cited in the charges against him. But the judges got right the question of presidential immunity, respecting the constitutional separation of powers, the office of the presidency, and the rule of law.
Adam Carrington is an associate professor of politics at Hillsdale College.
