Danforth, Luttig et. al SCOTUS Amicus Brief Stresses the Risk of Presidential Immunity for President Accused of Election Subversion

From the excellent just-filed brief:

Here, one dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not have immunity to engage in federal statutory crimes to subvert presidential election results and prevent the vesting of executive power in the newly-elected President. App’x at 31A, 37A-41A. A core allegation of the Indictment is that Mr. Trump knew that it was false to say there had been “outcome-determinative voting fraud in the [2020] election,” but nonetheless engaged in criminal lies and conspiracies “to overturn the legitimate results of the 2020 presidential election and retain power.”2 Under these allegations, former President Trump’s violations of federal criminal statutes were directed to usurping the authority and functions of the Presidency for the current term to which President Biden was legitimately elected. That constitutes an alleged effort to violate Article II, Section 1, Clause 1, also called the Executive Vesting Clause, and the Twentieth Amendment.

Former President Trump’s alleged effort to usurp the Presidency presents an especially weak case for extending the court-created doctrine of presidential immunity to a criminal prosecution. Nixon v. Fitzgerald, 457 U.S. 731 (1982), emphasized that the justification for even civil absolute immunity is not to protect any individual President, but rather “the Nation that the Presidency was designed to serve.” Id. at 753 (emphasis added). The last thing that would serve the Nation or the Presidency would be to embolden Presidents who lose re-election to engage in federal criminal statutory violations, through official acts or otherwise, as part of efforts to prevent the vesting of executive power required by Article II in their lawfully-elected successors. The scope of criminal immunity proposed by former President Trump would turn Nixon v. Fitzgerald on its head by encouraging the greatest possible threat of “intrusion on the authority and functions of the Executive Branch,” id. at 754 — a losing President’s efforts to usurp the authority and functions of a duly-elected successor President.

Mr. Trump mischaracterizes the D.C. Circuit as rejecting federal criminal immunity for former Presidents in “all” contexts. App’n at 1, 11, 25. This ignores the D.C. Circuit’s narrow holding that: “The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President . . . compel the conclusion that former President Trump is not immune from prosecution under the Indictment.” App’x at 31A. The Court emphasized: “[O]ur analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.” Id.; accord id. at 57A (public policy “compel[s] the rejection of his claim of immunity in this case”). As the court reiterated: “We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results.” Id. at 40A. Under Trump v. Thompson, the holding in these quotations by itself warrants denial of the application for a stay.

Although amici agree with the rest of the D.C. Circuit’s analysis, this Court should deny a stay even if this Court might not. The demonstrable need to deter attempted usurpation of the Presidency by itself provides a compelling ground that sustains the judgment below denying federal criminal immunity in this case. Because of at least this ground, denying a stay would not preclude possible federal criminal immunity for a President’s official acts in some different, exceptional situation. Nor would the Court have to address whether any alleged criminal
conduct here was an official act.

Preservation of the Presidency designed by Article II requires rejection of immunity from prosecution for a President’s engaging in violations of federal criminal statutes to alter declared presidential election results, whether that conduct consists of acts as a candidate, official acts, or both. Here, for example, the former President argues that he was acting officially when he allegedly conspired to commit federal criminal conduct by using Department of Justice personnel to make false statements to state officials to support his efforts to overturn declared state election results. Indictment, ¶¶ 70, 75, 78-79, 84. If that qualified for absolute immunity, the precedent would improperly encourage a future President to violate federal criminal statutes by deploying the military and armed federal agents in efforts to alter the results of a presidential election. See Part II.B, infra. This Court should deny a stay in this case because Mr. Trump’s claim of such a boundless immunity is wrong.

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