To fend off former President Donald Trump’s election subversion charges, his lawyers have argued in recent weeks that presidents should be immune to criminal prosecution. Trump himself has now made the case directly to the public, and in signature fashion: a lengthy, all-caps social media rant that envisions the presidency as autocracy.
“A president of the United States must have full immunity, without which it would be impossible for him/her to properly function,” Trump posted on Truth Social Thursday morning. (Edited to remove all caps.) “Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end. Even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad.”
The big-picture takeaway from Trump’s post is that he imagines the president not as a civil servant constrained by the law but as an absolute ruler.
“You can’t stop police from doing the job of strong & effective crime prevention because you want to guard against the occasional ‘rogue cop’ or ‘bad apple,’” Trump added. “Sometimes you just have to live with ‘great but slightly imperfect.’ All presidents must have complete & total presidential immunity, or the authority & decisiveness of a president of the United States will be stripped & gone forever. Hopefully this will be an easy decision. God bless the Supreme Court!”
Trump’s argument that it’s impossible to function as a head of state without immunity to criminal prosecution is dangerous. As my colleague Jordan Rubin has explained, presidential immunity is a real concept, but the Supreme Court has only granted it “in the civil context, and in limited circumstances at that.” Then-President Richard Nixon was sued by a U.S. Air Force analyst who said he was unjustly fired after testifying before Congress about cost overruns, but in 1982 the Supreme Court ruled that a president is immune to civil damages stemming from his official duties. However, Trump is arguing for immunity from criminal charges, not civil lawsuits. And he’s explicitly calling for “total immunity” even for acts that “cross the line” — which suggests he wants to be protected for acts that involve violating the law and would fall outside of official duties.
Trump tries to rationalize his position by hinting at the way that police benefit from qualified immunity. Qualified immunity is a legal doctrine that holds public officials to a lower standard for violating someone’s legal rights as a tool for protecting them from costly civil lawsuits and helping them function in their jobs more efficiently. There is an intelligible logic to the idea, but it’s clear that qualified immunity has too often allowed American police officers to stand above the law and get away with systematic — and often lethal — abuse. Of course for Trump, that’s not a bug, but a feature. He wants the legal system — or his followers — to give him what he seems to take as a license for police officers to break laws and use excessive force with impunity.
The big-picture takeaway from Trump’s post is that he imagines the president not as a civil servant constrained by the law but as an absolute ruler restricted only by his own moral reservations. In a classic bit of authoritarian ends-justify-the-means thinking, the argument is that greatness can only be achieved by discarding the kinds of rules that apply under normal circumstances or to normal citizens. It is an explicit argument against the way rule of law is meant to operate in a democratic society.
Regardless of how the courts rule on Trump’s immunity arguments, it’s significant that he’s so openly broadcasting his authoritarian vision to his followers. Trump is effectively incorporating an argument for dictatorial power into his policy platform. Everybody who votes for him this time should be considered complicit in aiding his autocratic ambitions.
