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Opinion: Trump Immunity Plea Will Fail, Still May Delay Trial

Donald Trump’s lawyers have filed their motion to dismiss his federal indictment on election-related charges, claiming he possesses absolute immunity from criminal prosecution. The document is full of bluster masquerading as legal argument, says Washington Post columnist Ruth Marcus. It won’t get the case dismissed — but it might just do the intended trick, which is to delay his trial beyond the scheduled March 2024 start. What Marcus calls Trump’s audacious argument, buttressed with cherry-picked quotes and misleading citations, is that he can’t be prosecuted for any actions he took as president, as long as they were within the “outer perimeter” of his presidential authority. This absolute immunity, his lawyers argue, is essential to “ensure the President may serve unhesitatingly, without fear that his political opponents may one day prosecute him for decisions they dislike.” They contend Trump’s actions “to ensure election integrity” are not only within that “outer perimeter” — they lie “at the heart of his official responsibilities as President.”

This contention is unconvincing, and that’s putting it charitably, Marcus says. The Justice Department has long maintained that sitting presidents can’t be prosecuted for their acts. That position, assuming it’s correct, presumes that indictment and prosecution are available once a president leaves office. Otherwise, what was special counsel Robert Mueller doing investigating Trump’s official conduct and concluding that there were 10 instances of possible obstruction of justice? That problematic conduct was, to quote Trump’s lawyers, even more “at the heart of his official responsibilities” than were Trump’s frantic efforts to pressure state officials and his own vice president to help him overturn the election results. In Trumpworld, a president, current or former, can never be held responsible for his actions. During Trump’s second impeachment trial, a different set of Trump lawyers insisted that the Senate had no authority to act because he was no longer in office. Trump’s motion is an effort to bootstrap a 1982 Supreme Court case, Nixon v. Fitzgerald, in which the court said presidents are absolutely immune from civil suits for their official actions. That’s where the “outer perimeter” language comes from. That case has never been understood to apply to criminal prosecutions of former presidents. “In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages,” the court wrote.


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