Presidential immunity, under any label, should never be so broad as to embolden an outgoing President’s violations of federal criminal statutes as part of efforts that would prevent what Article II mandates—the vesting of the authority and functions of the Presidency in the next, lawfully-elected President. This basis to affirm rests on a compelling legal principle: Any presidential immunity has to flow from protecting Article II and the Presidency it designs.
But there can be no Article II rationale for extending criminal immunity to a former President’s alleged federal crimes undertaken in efforts that would violate Article II’s provisions that limit a presidential term to four years and vest the executive power in the duly-elected successor.
One dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not have immunity to engage in unofficial or official acts that constitute federal statutory crimes that would overturn presidential election results. J.A. 33, 40-44. 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.”2 Under these allegations, former President Trump’s violations of federal criminal statutes, if successful, would have usurped the authority and functions of the Presidency for the current term to which President Biden was legitimately elected. That constitutes an alleged effort that, if successful, would have violated Article II, Section 1, Clause 1, also called the Executive Vesting Clause, and the Twentieth Amendment.