So, regardless of what either side claims in their pleadings, the question of immunity of a former President from criminal prosecution for actions taken while in office is novel and presents an “issue of first impression” for the Courts to resolve. Any claim to the contrary is legally ignorant or expresses a bias as to what the outcome should be. The question has never been answered, because it has never before been an issue that needed an answer. //

Smith has said that “no man is above the law” – and that’s just about it. That might seem a bit flip on my part, but in an Opposition that has 42 pages of “argument,” I count that phrase being used six times in the first nine pages alone.

What the former President has is the case of Nixon v. Fitzgerald, a Supreme Court çase decided in 1982. //

the Supreme Court took the matter up prior to trial and overruled both lower courts, finding that a President does enjoy absolute immunity from civil damage lawsuits for acts taken while in office pursuant to his authority as President. The boundary for conduct falling within that absolute immunity was acts within the “outer perimeter” of the President’s official responsibility. Former President Trump contends that all the operative facts relied upon by Smith in the indictment fall within the “outer perimeter” of his official responsibility while in office. //

What the Supreme Court did not say in Fitzgerald was that the immunity recognized therein would extend to immunity from criminal prosecution for acts “within the outer perimeter” of Trump’s official responsibility. Smith’s response to Fitzgerald relies primarily on that point. But the Court did not say that such immunity would not apply either – that question was not before the Court. //

The Court did say that the public has a greater interest in criminal prosecutions than in civil damages lawsuits, and that fact played a role in not allowing Fitzgerald to pursue his case against Nixon personally. But the same interests in granting immunity – laid out in the text above – applies in both situations, and the Supreme Court did not suggest that the case for immunity would be less compelling if the issue before it involved a criminal prosecution. //

Yes, it would create a substantial barrier to even the justified pursuit of a criminal prosecution of any future President for alleged criminal behavior while in office. But it would not be an insurmountable barrier. The “Impeachment” process in the Constitution includes what is referred to as the “Judgment” clause – Article I, Section 3, Clause 7:

“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, and Judgment and Punishment, according to Law.”

The House of Representatives impeached former President Trump for actions relating to the 2020 election, but he was not convicted by the Senate. His motion argues that criminal prosecution is allowed for conduct in office following an impeachment, conviction, and removal from office as stated in the “Judgment Clause.”

There is a logic and purpose for finding such a prerequisite. Impeachment and conviction, by the House and Senate respectively, provide the imprimatur of legitimacy from a co-equal branch of government closest to the people. It would provide independent justification for a subsequent elected Executive to prosecute the individual who was the prior elected Executive. Had the Senate convicted President Trump, that would have been a bipartisan “Judgment” that he had, in fact, committed “high crimes and misdemeanors” requiring his removal and disqualification from holding any office in the future. Such a finding would insulate a later criminal prosecution from claims of being politically motivated.

In a very real way, what partisan prosecutors are doing validates the exact point Trump is making as it confirms the risk identified by the Court in Fitzgerald.