On April 17, eight days before the US Supreme Court heard oral arguments regarding whether former President Donald Trump should enjoy absolute criminal immunity for alleged offenses committed while in office, the NYU Law Forum convened an expert panel to tackle that hot-button issue. The discussion was moderated by Professor of Practice Andrew Weissmann, who served as a lead prosecutor in Robert Mueller’s Special Counsel’s Office during Mueller’s investigation into allegations of a conspiracy between the Russian government and Trump’s 2016 presidential campaign.
The panelists traced the legal basis for presidential civil immunity, expressed in the 1982 Supreme Court case Nixon v. Fitzgerald, in which a former Air Force contractor sued former President Richard Nixon for allegedly costing him his job. The participants then touched on topics including the specifics of the arguments for and against presidential criminal immunity, and how the Supreme Court’s ruling in the Trump case could affect his federal trial on charges that he conspired to overturn the results of the 2020 presidential election. They also contemplated the chances of a trial date before the 2024 election, when voters will once again decide whether to return Trump to the Oval Office.
Selected remarks from the NYU Law Forum discussion:
George Conway, contributing writer for The Atlantic and former partner at Wachtell, Lipton, Rosen & Katz: “The Supreme Court ruled by only a 5-4 margin in favor of then-President Nixon [in Nixon v. Fitzgerald]. It went through all these civil liability cases [against past presidents] and distilled from those cases, basically, a principle that it kind of beefed up for the president. And the rationale was, well, the president does things that affect a lot of people…and if you say that somebody out there [was] harmed by his alleged…failure to comply with the law and you say that he’s personally liable, what president is going to be able to do his job? And from that they basically derived the standard for presidential civil immunity for conduct allegedly violative of the law and harming a civil plaintiff. And the standard is that if the conduct that is alleged is within the—and here are the magic words—‘outer perimeter’ of the president’s official responsibilities, then there can be no claim.” (video 05:13)
Kate Shaw, professor of law at University of Pennsylvania Carey Law School and co-host of the Strict Scrutiny podcast: “What Trump is asking for is an unprecedented extension or expansion of the absolute immunity rule of Fitzgerald to the criminal context, which is something no court has ever accepted. And I think everything in our history and constitutional structure and discussions—such as they are—in the cases and executive branch practice and things that Congress has said, all of that seems very clearly to render the argument that Fitzgerald should just apply wholesale, create absolute immunity from criminal liability for former presidents forever, is totally indefensible.” (video 09:39)
Trevor Morrison, Eric M. and Laurie B. Roth Professor of Law and dean emeritus: “Trump’s litigation strategy is to tell the Supreme Court, ‘Unless you find me immune in this case, you will have no ability to protect presidents from criminal prosecution when they act in core fulfillment of their constitutional responsibilities.’ He’s saying it’s all or nothing, and it isn’t all or nothing…. The point [of Special Counsel Jack Smith’s brief] is, I think, to convince the members of the Court who are concerned about the legitimate prerogatives of the executive branch that those prerogatives can be protected without having to distort immunity doctrine to cover what Trump is alleged to have done in this case.” (video 25:44)
Posted May 30, 2024