Unwrapped for you:The absolute immunity recognized in Fitzgerald extends only to suits for damages arising out of acts undertaken by the President within the âouter perimeterâ of his official duties. By that yardstick, the argument that Fitzgerald bars the latest indictment against Trump is doubly unpersuasive.
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Itâs hard to imagine how a rule of âabsolute immunityâ that doesnât run even to all damages claims or all civil suits could somehow nevertheless go furtherâand bar criminal prosecutions for the Presidentâs official acts, as well. Hereâs Justice Stevens for the Court in Clinton v. Jones: â[W]e have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.â Thus â[Clintonâs] effort to construct an immunity from suit for unofficial acts grounded purely in the identity of his office is unsupported by precedent.â
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As for the broader accountability point, consider this passage toward the end of Justice Powellâs analysis in Fitzgerald:
When judicial action is needed to serve broad public interestsâas when the Court acts, not in derogation of the separation of powers, but to maintain their proper balance, or to vindicate the public interest in an ongoing criminal prosecutionâthe exercise of jurisdiction has been held warranted. In the case of this merely private suit for damages based on a Presidentâs official acts, we hold it is not.
Thus, a central part of Powellâs analysis was that, in the grand scheme of things, a âprivate suit for damagesâ is not necessary to preserve the separation of powers in the same way that other judicial interventions (such as the subpoena in United States v. Nixon) had been and could be. Obviously, criminal prosecutions of a former president (in a context in which, at least according to many of his supporters, he can no longer be impeachedâso itâs prosecution or bust) is a very different caseâand one in which judicial intervention is likewise arguably far more essential.
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Former President Trump may have other defenses to the charges leveled in this latest indictment; Nixon v. Fitzgerald just ainât one of them.
Unsurprisingly,
Fitzgerald is all they have.Trump's lawyers invoke the 1982 Supreme Court ruling Nixon v. Fitzgerald to make their "outer perimeter argument, an argument already shot down by federal Judge Tanya Chutkan.
Former prosecutors tell MeidasTouch that the argument has no legs in criminal cases. Just because one is president, does not mean he or she can go ahead and freely commit crimes. As Judge Chutkan put it in her decision, "Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong 'get-out-of-jail-free' pass."
Basically, Trump doesnât have any argument he didnât already make in front of Chutkan. Expecting a different result is the lay definition ofâŠwell, poor legal reasoning, at least.
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