The following is a guest post from Richard Bernstein:

The most important 2024 case for future presidential elections will likely be the final decision on appeal about whether former President Trump has immunity from criminal prosecution for his efforts to subvert the 2020 presidential election results. As shown in a D.C. Circuit amici brief filed by former officials in five Republican administrations (see here), granting Trump criminal immunity would embolden future first-term Presidents who lose re-election to try to usurp a second term.

Trump relies on Nixon v. Fitzgerald, 457 U.S. 731 (1982), but that was neither a criminal case nor about a presidential election. Indeed, it stated that there was a greater “public interest” in criminal prosecutions than civil cases, and that the scope of presidential immunity should focus on the source of “the dangers of intrusions on the authority and functions of the Executive Branch.” Id. at 754 & n.37. Here, the dangers come from alleged criminal conduct by a President directed to subverting the peaceful transfer of executive power to his elected successor.

Former President Trump argues that immunity for him is needed to protect the executive power conferred on every President by “the executive vesting clause of Article II.” Appellant’s Br. at 1, 5, 10. That has it backwards. The second sentence of the Executive Vesting Clause requires the peaceful transfer of power. It mandated that Mr. Trump leave office at the end “of four years” because he lost re-election. This mandate is reiterated by the Twentieth Amendment. Mr. Trump’s alleged criminal conduct was directed to violating these provisions by preventing the transfer of executive power to the winner of the election.

“To justify and check” the President’s “unique [authority] in our constitutional structure,” Article II “render[s] the President directly accountable to the people through regular elections.” Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183, 2203 (2020). Presidential immunity cannot protect and thereby encourage using criminal conduct to subvert the results of presidential elections, even if criminal immunity might apply in a different, exceptional situation.

It would turn Article II on its head if absolute immunity were so broad that it encouraged a President to engage in criminal conduct by seeking to deceive or intimidate the very state and congressional officials to whom, unlike the President, Article II assigns duties, respectively, to determine who won and to count the legitimate electoral votes. Even worse, the former President has argued his immunity for official acts should extend to criminal efforts to misuse Justice Department personnel because an Attorney General “is appointed by and reports to the President.” D. Ct. Dkt. No. 74, at 33. Under this reasoning, criminal immunity would encourage a future President to order the Departments of Defense, Homeland Security, and Justice to deploy the military or armed federal agents to help overturn that President’s re-election defeat.

Indeed, when Trump lost his court challenges to the 2020 election, there was a drumbeat of calls from his allies to deploy the military or DHS. Thankfully, current federal criminal statutes deter a President from deploying the military or armed federal agents to interfere with presidential election results. See, e.g., 18 U.S.C. §§2, 593, 595, 1385. Granting former President Trump immunity would undo all that. Ours is a divided nation, where four of the last eight incumbent Presidents lost re-election. No court should create a presidential immunity from criminal prosecution that would embolden future losing Presidents to break the law—and our constitutional system—in support of their efforts to usurp power.