Former President Donald Trump is doing his best to tie up special counsel Jack Smith’s election interference case for as long as possible. With the Supreme Court’s decision last week to forgo Smith’s request to skip to the end of the appeals process, Trump’s legal team is focused on appealing trial Judge Tanya Chutkan’s ruling from earlier this month. Trump is especially keen to reassert his “presidential immunity” defense that would effectively shield him from any of the charges Smith has brought against him.
The basis of this truly bonkers assertion is a favorite of Trump’s, that the separation of powers safeguards him from any kind of oversight.
Much of the brief Trump’s lawyers filed on Saturday is a rehash of the unfounded constitutional claims that Chutkan shot down. But among those well-trodden arguments, Trump all but requests the appeals court to rule that the judiciary has no power over anything he did while in office — to rule, in effect, that Chutkan has it wrong: He does possess the divine right of kings, and as such, no other branch of government can touch him.
The basis of this truly bonkers assertion is a favorite of Trump’s, that the separation of powers safeguards him from any kind of oversight. In the past, his lawsuits and defenses have focused on the legislative branch’s attempts to hold him to account or (bizarrely) claiming that the Justice Department can’t breach executive privilege, despite both the president and DOJ being part of the executive branch. This time around there’s a novel focus on the reach of the judiciary itself to police the actions of the president.
“Under the doctrine of separated powers, neither a federal nor a state prosecutor, nor a state or federal court, may sit in judgment over a President’s official acts, which are vested in the Presidency alone,” his lawyers write in their brief. They emphasize that a president’s official acts aren’t “examinable by the Judicial Branch,” a principle that extends back to the landmark 1803 Supreme Court case Marbury vs. Madison. Trump also contends that senior officials — like, for example, the president — shouldn’t face criminal charges from a “possibly hostile judiciary.”
Both of those arguments are based on a set of very, very tenuous assumptions. First, the idea that the judicial branch can’t touch him at all hinges precariously on the phrase “official acts.” It’s a broad phrase that, generally speaking, refers to actions taken by the president that involve enforcing duly passed laws. If President Joe Biden issues a policy related to the climate change provisions in the Inflation Reduction Act, for example, that’s an official act that can’t be the basis for civil or criminal charges against him.
For that to apply here, it would require that acts taken by Trump after the 2020 election were all “official acts” sanctioned under duly passed laws. In this version of reality, rather than trying to retain power despite losing the election, Trump was merely rooting out fraud and ensuring that election laws were properly applied. It’s a claim we’ve heard elsewhere lately, as Trump has attempted to stay on the ballot and to deny that he was “engaging in an insurrection” ahead of the Jan. 6, 2021, attack on the Capitol.
Neither Congress, nor the courts, nor the voters themselves can constrain a president in his framing.
As Smith’s indictment makes clear, though, that is not at all the case. Instead, Trump “pursued unlawful means of discounting legitimate votes and subverting the election results” and in doing so “targeted a bedrock function of the United States federal government: the nation’s process of collecting, counting, and certifying the results of the presidential election.” Like actions taken after accepting a bribe, there is nothing official about acts that proceed from illegal activity.
Trump’s rejection of judicial authority also assumes that there’s a transitive property to what’s known as the Speech and Debate Clause. In short, Article I, Section 6, of the Constitution provides that a member of Congress can’t be arrested “for any Speech or Debate in either House.” It’s meant to be a protection against a rogue executive punishing legislators for making an argument while debating a draft law. You’ll note that there’s no section of the Constitution that says anything similar about the president — or former presidents, for that matter.
Moreover, a senator railing against a bill isn’t at all similar to what Trump was up to after the 2020 election, no matter how much he tries to insist it was merely protected political speech. In citing cases involving legislative immunity and judicial immunity — which supposes that judges can’t be charged for legitimate actions taken from the bench — his lawyers are attempting to create an equivalent prerogative for the presidency out of whole cloth. The closest they come is in citing a Supreme Court case in which a civil suit against former President Richard Nixon was thrown out. But again, those examples all rely on the actions in question being legitimate and not part of a self-serving conspiracy against the country.
It’s true that there must be guardrails to allow for the independence of the three branches of our federal government to operate without undue interference from the others. But when you look at not just this one appeal, but the aggregate constitutional worldview Trump has espoused over the last seven years, it’s obvious that “guardrails” are not what he’s advocating. Neither Congress, nor the courts, nor the voters themselves can constrain a president in his framing. For the courts to agree would make Trump a president in name, an emperor in practice, and nothing close to what the Constitution and its drafters intended.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House.