by Jay Bookman, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

January 11, 2024

“The 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.”

John Marshall, first chief justice of the U.S. Supreme Court, 1807

In Washington D.C. and in Fulton County, Donald Trump and his attorneys are trying to tell us that as a former president, he cannot be prosecuted for any crimes he may have committed while in office, that under the Constitution he enjoys absolute immunity.

He is, they argue, above the law, free to do whatever he wants as president, including the commission of crimes, without fear of punishment.

“From 1789 to 2023, no president ever faced criminal prosecution for acts committed while in office,” a brief filed on Trump’s behalf in Fulton County argues. “The indictment in this case charges President Trump for acts that lie at the heart of his official responsibilities as president. The indictment is barred by presidential immunity and should be dismissed.”

According to his lawyers, even if Trump did incite an insurrection, even if he did conspire to overturn a legitimate election, he cannot be prosecuted criminally for those crimes, not in state court and not in federal court. They’re taking the position once taken by President Nixon: “It’s not illegal if the president does it.”

There’s no way to square those arguments with Marshall’s description of the president as a citizen elected from “the mass of the people” who returns to the mass of the people upon leaving office. Nor is there language in the Constitution granting such immunity to former presidents. And while it’s true that we have never indicted a president before, no president has ever tried to block the peaceful transfer of power either. Unprecedented attacks upon the Constitution have required unprecedented reaction in its defense. 

Trump also argues that over the centuries, the courts have given presidents immense leeway in doing their jobs, understanding that a chief executive and commander in chief sometimes has to make tough decisions on behalf of the country. He’s right. Judges have concluded that those decisions are tough enough without having to worry that he or she will later be prosecuted for those decisions by a successor president.

But that is not immunity without limit. 

In a civil suit filed against Trump for damages related to the violence of Jan. 6, the D.C. Court of Appeals has already ruled that a former president’s immunity is not absolute. In its opinion, the appellate court drew an important distinction between official actions taken by a president in the performance of his or her duties, and actions that are taken by a president campaigning for office.

“When a first-term president opts to seek a second term, his campaign to win re-election is not an official presidential act,” the court found. “The Office of the Presidency as an institution is agnostic about who will occupy it next. And campaigning to gain that office is not an official act of the office.”

In short, actions taken by the president as an office-holder cannot later be the grounds for civil suits, but actions taken by a president acting as an office-seeker enjoy no such immunity. Using that test, the appellate court found that by allegedly inciting the crowd to insurrection on Jan. 6, Trump was not acting as an office-holder, but as an office-seeker. 

For another illustration, take an incident very familiar to Georgia readers, the phone conversation between Trump and Brad Raffensperger on Jan. 2, 2021. In a brief filed in Fulton County, Trump’s attorneys argue that in pushing Raffensperger to “find” 11,800 votes, Trump was performing his official duty as president to “take care” that the laws of the United States are properly enforced, and is thus immune to criminal prosecution.

Using the appellate court’s distinction between the actions of an office-holder and an office-seeker, let’s take a closer look at that claim.

As far as we know, three attorneys assisted Trump in that phone call. Those attorneys were not from the Office of White House Counsel, which advises the president in his duties as office-holder. They were not from the Department of Justice, which enforces federal law. In fact, none of the three were employed by the federal government in any way. 

Instead, all three attorneys assisting Trump in that call were associated with the Trump political campaign or the Republican Party. They were assisting Trump in his role as office-seeker, not office-holder. 

Also assisting Trump in that call was White House Chief of Staff Mark Meadows, who has been indicted alongside the former president by a Fulton grand jury. In attempting to move his case out of Fulton County into federal court, Meadows had earlier tried to argue that he was acting in his role as a federal employee, but a federal judge rejected that motion. Meadows, the judge ruled, was acting well outside his federal role during that phone call. He was assisting Trump in seeking re-election, not in performing his job as president.

So no, Trump is not immune to prosecution for his actions in trying to overturn the election and reinstall himself as ruler. He has been returned by the people to the mass of people, and like the rest of us, he is not above the law.

One final point: Earlier this week, a brief was filed in Fulton County Court alleging an affair between Fulton County District Attorney Fani Willis and a private attorney that she hired to assist in prosecuting the Trump case. I have no idea whether the allegations are accurate, but if true, they betray a fatal lack of judgment on the part of Willis. If you take on the people she has taken on, you better make damn sure your own house is in order first.

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.