Donald Trump has never met a legal theory he won’t embrace so long as it will keep him (or return him) to power and leave him unaccountable.
Trump is now arguing that he has (or should have) absolute immunity for any of his crimes, and that he must be impeached before he can be criminally charged and convicted.
During his impeachment trial he was arguing the exact opposite: that he first must be criminally charged and convicted before he can be impeached.
Of course, no one has ever expected Donald Trump to be consistent.
Let’s backtrack a little first, and discuss what immunity actually is. Historically, sovereign immunity was the notion that the King (or Queen) couldn’t be sued.
At all.
For anything.
We didn’t import that over here wholesale, but we did import a version of it. In the United States, the federal government as a whole has sovereign immunity and may not be sued unless it has waived its immunity or consented to be sued; for the most part, that means it allows itself to be sued in tort under the Tort Claims Act.
Individuals employed by the government generally have that same tort immunity. So, for example, the family of a migrant who drowned cannot sue Secretary of Homeland Security Alejandro Mayorkas for wrongful death because one of their children drowned while trying to cross the Rio Grande.
In general, a governmental employee cannot be sued for a “discretionary” function. They have what is known as “qualified” immunity. So, a social worker cannot be sued for placing a client in a home where the client is eventually abused. On the other hand, individual government employees can be sued for criminal offenses, which are generally not “discretionary” or “official” functions of government. That is why Senator Bob Menendez can and has been prosecuted for bribery. (For various reasons which need not detain us here, the prosecution was not successful.)
Enter Donald Trump, and his preposterous claim that he enjoys “absolute” immunity for his acts as President. To understand how preposterous this claim really is, consider the following colloquy between Trump’s attorney and one of the judges:
- Judge: could a president be prosecuted for ordering SEAL Team Six to assassinate a political rival?
- Trump’s attorney: Congress would have to impeach and convict that president before he could be charged with a crime.
Back in 2016 Trump famously said that he could “shoot someone on Fifth Avenue and not lose any votes.” Now, apparently, he wants to be able to shoot someone on Fifth Avenue and not be indictable.
Wow.
Trump isn’t going to win this one. There is nothing in our Constitution or our history that suggests that the President of the United States should have that kind of immunity. That is reserved for Kings, and as some might recall, we fought an entire bloody war here so that we wouldn’t be subject to a King.
But, as is well known, it would delay the start of the trial that Jack Smith has brought against Trump for insurrection, and Trump has made no secret of his desire to simply run out the clock.
In the extremely unlikely case that the Supreme Court were actually to buy his argument, the door would then be open for every President — including Joe Biden — to behave with more or less complete disregard of the law.
Be careful what you wish for, MAGA supporters.