Presidential Immunity

This week we talk about diplomatic immunity, Trump’s court cases, and the Supreme Court.

We also discuss Nixon, Clinton, and the US Constitution.

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Transcript

There's a concept in international law—diplomatic immunity—that says, in essence, certain government officials should be immune from the laws of foreign countries, including those within which they're operating.

This is a very old concept, based on similar rights that were granted to envoys and messengers back in the oldest documented periods of human civilizations.

The idea is that if different cultures, whether organized into tribes or kingdoms or nation states, are going to be able to deal with each other, they need to maintain open and reliable means of communication. Thus, the folks tasked with carrying messages between leaders of these different groups would need to be fairly confident that they wouldn't be hassled or attacked or prosecuted by the people they were bringing those messages to, and whose messages they were bringing back to their own leaders.

Such representatives have at times been imprisoned or killed by their hosts, but this is relatively rare, because any governing body that treated ambassadors from other cultures in this way would have trouble dealing with anyone outside their current legal sway, and that would in turn mean less trade, less reliable peace, and less opportunity to generally cross-pollinate with cultures they might benefit from cross-pollinating with.

As a general rule, at least in the modern iteration of diplomatic immunity, folks operating under the auspices of this policy can still be punished for their misdeeds, it's just that they'll generally be declared persona non grata, expelled from the country where they did something wrong, rather than punished under that country's laws.

In some rare instances a country hosting a misbehaving or criminal ambassador or other diplomat might ask that person's home country to waive their immunity, basically saying, look, this person killed someone or got drunk and drove recklessly through our capitol city's downtown, we'd like to try them in our courts, and it may be that the government running that misbehaving person's home country says, okay, yeah, that's messed up, you go ahead; but usually—even if that person has done something truly reprehensible—they'll instead say, no, sorry, we'll pull them back and they won't be allowed to return to your country or serve as an ambassador anywhere else, because they've shown themselves to be unreliable, and we might even try them in a court here, in their home country, but we can't allow our people, no matter what they do, to fall under the legal jurisdiction of some other nation, because that would set a bad precedent, and it may make people wary of working for us in this capacity in the future—surely you understand.

There are tiers of diplomatic immunity, depending on the seniority of the diplomat or other representative in question, and the Congress of Vienna of the early 1800s charted out the basis for how these things work, in much detail, formalizing a lot of what was already in the ether back then, and creating an outline that was then further formalized in 1961's Vienna Convention on Diplomatic Relations, which has been almost universally ratified and respected, though of course there's been a lot of grey area in terms of what harassment of a representative, which is a no-no according to this convention, entails, and to what degree it can be proven, and thus punished, if violated.

We saw a lot of grey area utility during the height of the Cold War in particular, in part because many diplomats were moonlighting as spies, which is still true today, though it was even more overt and worrisome to their host countries, back then, so harassment, kidnappings, even assassinations of diplomats were more common then, than today, though they were still almost universally done covertly so that no one seemed to be violating these nearly universally accepted terms.

What I'd like to talk about today is another type of legal immunity—in this case, Presidential Immunity in the US—and why this type of immunity is at the center of former US President Trump's ongoing legal cases.

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In the United States, many politicians and high-level appointees enjoy some of the immunity-related privileges in their own country that diplomats of various stripes have traditionally enjoyed elsewhere.

Most of these figures are only protected by this immunity under very specific circumstances, though, not universally.

Judges, while doing court-related, judge-work, for instance, have absolute civil immunity—so a judge who falls afoul of the law in the course of their duty as a judge, doing judge-things, will tend to get away with whatever it is they did wrong, though this won't generally apply to non-judge things they do during that same period

So a judge would have trouble arguing that they should get off with a warning for murdering someone because they happened to kill that person while they were on their lunch break, but they would likely be okay if they accidentally ruled in a way that exceeded their jurisdiction, even if their having done so caused all sorts of secondary problems.

Similarly, and also within the US court system, a prosecutor can't be sued for withholding evidence, even if their having done so leads to a wrongful conviction, which would be a bad thing that happened as a result of their actions, but because they acted while performing their protected duty, they'll almost certainly be okay from a legal standpoint, even if not always a moral one.

These are not rules novel to the US system of governance; most of them were borrowed from earlier forms of the same, and a lot of the US's version of these immunity rules are derived from those that exist within the British parliamentary system, where parliamentarians can't be prosecuted for things they say while in Parliament, and the same is true for politicians while engaged in their work on the floor of the US House of Senate.

Interestingly though, while the US Constitution provides that kind of legislative immunity to Congresspeople, it doesn't grant the same, or anything similar, to the President; and this was apparently a hotly debated topic back in the Constitution-writing days, as those who set up the rules of the land were aware that it might be beneficial to allow folks at the top some legal leeway, so they don't make executive decisions based on whether or not they might be sued or otherwise punished for those decisions, but at the same time they really didn't want another king, or similarly authoritarian ruler to step into office and then get away with murder—perhaps literally.

So the constitution doesn't give the President of the United States the same immunity as other members of government, but a slew of cases in the 19th and 20th centuries found, in general, that if the president or members of the president's cabinet take actions that are "more or less" within the scope of their duties, they should be granted absolute immunity, protecting them from lawsuits and legal punishments.

A court case against President Nixon in the 1970s made that previously somewhat vague and general legal trend more formal, at first triggering a bunch of lawsuits against him and his people, but then a 1982 Supreme Court decisions said, in essence, that former or current presidents are immune from lawsuits related to anything that falls within the "outer perimeter" of their duties, due to the president's "unique status under the Constitution."

This legal precedent was tested in the mid-1990s when then-President Bill Clinton was sued for sexual harassment during his governor of Arkansas days, and a lower court, then the Supreme Court, both affirmed that presidential immunity doesn't protect the president from things they did before taking that highest government office.

As a result of all that, today we have a legal context in which the President is kind of granted some immunity for some things they do while in office, but the delineation between protected and not-protected is fuzzy, and there's a whole lot of theory on this matter, but less in the way of actual court precedent that establishes confident footing for anyone stepping into this corner of the legal world.

All of which is newly relevant in 2024 because former President Trump is currently being prosecuted for all sorts of things in several different jurisdictions. And part of his legal strategy is based on a sort of Hail Mary play that's made its way to the Supreme Court, and which is premised on the concept of Presidential Immunity.

But before we get to that case, let's talk real quick about the other cases that are currently in progress, all of which that bigger Supreme Court case may influence, depending on how it turns out.

Beginning this week, as of the day this episode goes live, the week of April 15, 2024, Trump is scheduled to be in court four days a week for the next six to eight weeks, facing 34 criminal charges related to falsifying business records in order to get payoff money to Stormy Daniels, allegedly to cover up an affair they had, which he didn't want becoming public while he was running for his first term in office.

Tentatively beginning in late-May of 2024, Trump will face 40 criminal charges in Florida for allegedly mishandling sensitive documents, and his alleged conspiracy to keep those documents even after the government demanded them back.

A federal case in which Trump faces four criminal charges related to his alleged effort to overturn the 2020 presidential election results was originally meant to begin the first half of this year, but it's looking increasingly likely it won't occur until after the November presidential election, as the judge overseeing the case has postponed it until after the Supreme Court makes their decision about presidential immunity, though there's a chance it could start as early as August, despite that delay.

And Trump faces 10 criminal charges for the same general collection of alleged efforts to overturn the 2020 election in Georgia, alongside 18 alleged co-conspirators; that trial has a proposed start date of August 5, but that would be tricky, as it would mean the trial could run through Election Day, which would be awkward and would likely complicate things further.

Trump has also dealt with a flurry of recent civil, so non-criminal, no jail time possible, just fines, lawsuits, including one related to sexual assault and his defamation of the person he sexually assaulted, which led to a big payout recently, and another in New York related to his misrepresentation of the value of his real estate holdings in the state, which led to an even bigger fine, but which is currently being appealed.

There's another federal civil case that's ongoing, Thompson v. Trump, which is related to the attack on the US Capitol by Trump's fans on January 6, 2021, and that's especially relevant here because, already, the judge in that case, ruled that Trump's presidential immunity does not shield him from this lawsuit, and an appeals judge ruled the same.

There's now a Supreme Court case, which I mentioned earlier, that consolidates three separate civil lawsuits into one, Trump v. United States, and this case asks, in essence, whether Trump should be protected from these lawsuits by presidential immunity; that same immunity that was upheld in many cases in recent memory, though in different contexts.

The reason this Supreme Court case is so fundamental here is that it could impact many or all of those other cases, plus others that might arise related to Trump's actions in the future, as it would give him a sort of legal whammy on just about anything he could argue was done within the perview of his role as President.

Thus, he could argue he wasn't trying to overturn the 2020 election that he lost, he was looking into what he considered to be legitimate election irregularities as part of his duty as President. And if some other things happened as a result of that effort, like his supporters breaking into the Capitol building, he should be protected from that under the auspices of this immunity.

Those two DC court judges that earlier ruled Trump wasn't protected by presidential immunity said that it's in the public interest to hold presidents accountable for their actions, because not doing so would leave anyone who holds that office "unbounded authority to commit crimes."

They determined that it was worth the possibility that a president might make some executive decisions from a perspective of worrying about later lawsuits if it would prevent the creation of a political office from which someone could legally get away with any crime they chose to commit, including but not limited to, theoretically at least, assassinating their political rivals.

The big question now is how the Supreme Court will decide on this matter; some people are predicting that the heavily slanted toward conservative justices court will be more likely to find in Trump's favor, though they've defied those expectations several times in recent years, in some cases seeming to take advantage of their current 5 or 6, depending on how you measure, versus 3, conservative to liberal composition in order to get a bunch of Republican priorities accomplished, like overturning Roe v. Wade, which protected the right to an abortion at the federal level, but in other cases they've made what seem to be more objective rulings, defying assumptions made based on those ideological leanings—so there's no way to know one way or the other on this, right now. We'll likely find out, though, sometime in May or June, as the court will begin considering these claims on April 25 of this year, and it's expected they'll have their ruling sometime in those subsequent two months.

Until then, though, some of these other cases are a bit up in the air, as the granting of enhanced immunity could make Trump's current and potential future cases a slam-dunk for his defense team, while a ruling in favor of the contemporary, fuzzy standard, or one that weakens that standard, at least for his specific context, would deny him that potentiality.

That said, Trump's defense team seems to have also been making use of the abundant delay tactics that are available within the US justice system, and there's a chance that if he delays long enough and then wins another term as president in November, that would allow him, when he steps back into office early next year, to either pardon himself or order someone in his government to get rid of the charges against him.

Which is part of why the prosecutors working opposite him have been politely but firmly asking the judges in charge of these cases to pick up the pace, because there's a looming possibility that even if the courts decide against Trump in some key cases, he could still get off Scott free, because of that other apparent loophole in the system that would allow a sitting President to get away with just about anything, though in this case because of a different, in practice immunity-granting mechanism.

Show Notes

https://www.washingtonpost.com/news/opinions/wp/2014/01/30/7th-circuit-pokes-a-hole-in-prosecutorial-immunity/

https://en.wikipedia.org/wiki/Trial_of_Donald_Trump

https://en.wikipedia.org/wiki/Indictments_against_Donald_Trump

https://www.nytimes.com/interactive/2023/us/trump-investigations-charges-indictments.html

https://www.nytimes.com/article/trump-investigations-civil-criminal.html

https://www.pbs.org/newshour/politics/trumps-2024-trials-where-they-stand-and-what-to-expect

https://www.washingtonpost.com/politics/interactive/2023/trump-investigations-indictments/

https://www.bbc.com/news/world-us-canada-68577638

https://www.bbc.com/news/world-us-canada-61084161

https://www.theatlantic.com/ideas/archive/2024/03/donald-trump-legal-cases-charges/675531/

https://archive.ph/JFsIB

https://en.wikipedia.org/wiki/Indictments_against_Donald_Trump

https://apnews.com/article/trump-jury-selection-hush-money-trial-manhattan-56d540406cd174ab143fe12469e9adef

https://apnews.com/article/donald-trump-michael-cohen-stormy-daniels-e40532d3bce7768e296fdaf9591ef05b

https://www.wsj.com/us-news/law/trump-criminal-hush-money-trial-begins-2a1bdd15

https://www.reuters.com/world/us/fallout-trumps-bid-overturn-election-loss-heads-supreme-court-2024-04-14/

https://www.reuters.com/legal/special-counsel-urges-us-supreme-court-reject-trump-immunity-bid-2024-04-09/

https://en.wikipedia.org/wiki/Trump_v._United_States_(2024)

https://en.wikipedia.org/wiki/Presidential_immunity_in_the_United_States

https://en.wikipedia.org/wiki/Absolute_immunity

https://en.wikipedia.org/wiki/Parliamentary_immunity

https://en.wikipedia.org/wiki/Diplomatic_immunity

https://www.britannica.com/topic/diplomatic-immunity

https://en.wikipedia.org/wiki/Vienna_Convention_on_Diplomatic_Relations

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