No former President of the United States has ever been indicted for criminal acts in our history. Let me restate that another way….never has a former President of the United States been indicted for felony charges of any kind in the 237-year history of our Constitutional Republic. No one…all 44 of them, before #45, Donald Trump.
Think about that for a minute. We have had some scoundrel Presidents in our history. Not every President of the US has been a man of moral turpitude and upright character. The only President who came close to an indictment was Richard Nixon, who was only saved by the good graces of the hapless Gerald Ford who pardoned him before any indictments could be handed down. (If absolute immunity were an accepted principle, Nixon would not have needed a pardon)
But now we have a former President who has been indicted 91 times for potential crimes (felonies) before, during, and after he was President. And this morally inept, corrupt human being dared to argue before an appeals court (wasting their time) that he should not be tried because as a former President, he has absolute immunity.
“Absolute” as in, complete, total, infinite, outright, unlimited, and unqualified…immunity from prosecution. This argument showed not only a lack of knowledge about the history and framework of our Constitutional system but also a complete disregard for the same.
As a history and civics teacher, I’d like to offer a critique of Mr. Trump’s arguments with a summary grade at the end. This does not go well for Mr. Trump…who I can only surmise, was either skipping class to play golf or sleeping with someone not his wife during the pertinent class lessons.
Let’s start with the end…
The three judges on the appeals court cast Mr. Trump’s immunity claims as a danger to the nation’s constitutional system. They ruled that:
“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute, and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
In other words, to grant Mr. Trump immunity from prosecution would bring down our whole Constitutional system of checks and balances, the rule of law, and the Constitution. It would put an end to the American Constitutional experiment and release unlawfulness into the system in a way the founders feared the most. Unbridled power within the hands of a single individual with no checks and no way to restrain his/her behavior.
What Mr. Trump doesn’t understand, because he was such an inept student or non-avid reader, is that the American Revolution was about this same core issue. Unbridled power! We fought for independence from a Monarch who thought himself above the law, untethered to any restraint, and untouchable to any judicial authority.
I’m sorry Donald, we fought a war and sacrificed many a good man to ensure the rule of law and the operation of checks and balances within a Constitutional system. In other words, Mr. Trump…. We do not have and will not tolerate, Monarchs in the United States of America!
Steven Cheung, a spokesman for Mr. Trump’s campaign, said the former president “respectfully disagrees” with the decision and would appeal it.
“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party,” Mr. Cheung said. “Without complete immunity, a president of the United States would not be able to properly function.”
What Mr. Trump again missed in his high school history lessons is that no outgoing President in American history has ever been indicted by a new incoming President, even when there might have been cause. Even in the case of Richard Nixon, the Presidential pardon put a stop to any possible, but legal, indictment of the outgoing President.
Let’s examine some of the passages from the decision of the Court of Appeals for the District of Columbia with my comments and final grade for Mr. Trump at the end. Trump as a student, has failed to understand or grasp the fundamental principles of the Constitution and how our Republic works.
Here are just a few of the relevant sections from the decision which you can read in full here.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Civics 101. When a person is elected President, it is for four-year terms, not for life. Supreme Court Justices are appointed for life, but Presidents only serve a limited amount of time, and whatever immunity may have protected them during their term as President does NOT follow them into private life. We do not elect Monarchs with life-long get-out-of-jail-free cards.
The District Court ruled that, “ [ t] he Constitution's text, structure, and history do not support the existence of such an immunity, id. , and that it “ would betray the public interest to grant a former President a categorical exemption from criminal liability for allegedly attempting to usurp the reins of government."
American History 101: Read the Declaration of Independence Donald. In that historic document, Jefferson identified 26 grievances that formed the basis for taking action to separate from Britain. Those grievances included: “He [King George] has refused his Assent to Laws, the most wholesome and necessary for the public good.” “He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” “He has excited domestic insurrections amongst us…” We did not fight the Revolutionary War just to have the likes of Donald Trump reinstate an untouchable Monarch.
“Former President Trump's claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.”
Civics 101: While the Supreme Court has held that presidents are immune from civil lawsuits over their official acts, no precedent says they cannot be criminally charged for official crimes. Before Mr. Trump, no former president was ever charged with a crime, so the judiciary has never had an opportunity to consider this issue until now. There is no precedent anywhere in the Constitution or in American history to sustain Trump’s argument.
“Former President Trump misreads Marbury [vs. Madison] and its progeny. Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”
American History and Civics 101: Trump’s argument that the judiciary cannot review official acts of a President is easily dismissed by a reading of the Marbury Case from 1803. The panel says that while courts may not be able to review how a president exercised discretionary executive authority, they can review whether he violated federal criminal statutes that he is bound to obey. The appeals court goes on to eviscerate Trump’s argument by citing example after example of judicial review of Presidential actions.
“We, therefore, conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability . Acting against laws enacted by the Congress , he exercised power that was at its lowest ebb." Youngstown , 343 U.S. at 637 (Jackson, J., concurring) . Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
American History & Civics 101: President Nixon famously said, “When a President does it, it isn’t illegal.” This seems to be a theory adopted by former President Trump. The Appeals Court, in this passage, clearly dismisses this argument based on the Constitution, precedent from other court cases, and history. The panel concludes that courts have jurisdiction to hear the charges — rather than the president being immune.
“Trump's 2021 impeachment proceedings for incitement of insurrection, his counsel argued that instead of post-Presidency impeachment, the appropriate vehicle for investigation, prosecution, and punishment is the article III courts, as we have a judicial process and an investigative process . . .to which no former officeholder is immune." 167 CONG REC. S607 (daily ed. Feb. 9, 2021)
Logic 101: Trump’s team is arguing against themselves when they try to argue for “complete immunity.” During the impeachment trial in Jan. 2021, Trump’s team admitted in public that a former president CAN be prosecuted and that there is NO immunity. Now, in a bait-n-switch move, Trump wants us to believe that what? He was only kidding. “Pay no attention to what I said then, this is now.” Trump must take the American people for suckers.
“The Indictment alleges that the assertedly official actions at issue here were undertaken by former President Trump in furtherance of a conspiracy to unlawfully overstay His term as President and to displace his duly elected successor. See Indictment¶¶2, 10. That alleged conduct violated the constitutionally established design for determining the results of the Presidential election as well as the Electoral Count Act of 1887, neither of which establishes a role for the President in counting and certifying the Electoral College votes.”
Civics 101: Mr. Trump is arguing that his actions to stop the counting of the electoral votes was part of his “official duties” as President. He has not read the Constitution. Nothing in Article II of the Constitution gives a President any role whatsoever in the counting of the electoral votes. The Vice President certainly has a ceremonial role, and Trump’s pressure on Mike Pence to overturn the results clearly violated the Electoral Count Act of 1887. There is no argument here. The panel dismissed another silly, unsubstantiated, and illogical argument from Trump’s lawyers.
In a final stinging critique of Trump’s argument, the three-panel Appeals Court had this to say:
“We cannot accept former President Trump's claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”
The message to Trump and his MAGA followers is clear: we do not want, and our system of government forbids a Monarchy. You cannot be a self-appointed “king” with unlimited power and immunity from any judicial accountability. We do not believe in the “divine right of kings.” That theory was overturned by a revolution in 1776.