(CNN) — The thought of any White House candidate going to court to challenge a 250-year-old understanding of presidential jurisdiction, just six days before the Iowa caucuses, is extraordinary.
But Donald Trump will try again this Tuesday to draw on those powers to protect himself in a high-stakes judicial move that, if successful, would put him and any other president-elect above the law.
Given the 45th president’s oft-stated belief that he had near-omnipotent powers while in office—and may still be entitled to them—the historic spectacle that’s about to unfold isn’t all that surprising. The front-runner for the Republican nomination says he will be in the U.S. Court of Appeals for the District of Columbia Circuit to see his lawyers argue that he has “absolute immunity” from prosecution in his case of federal interference in the 2020 election. .
The case and impending trial stem from Trump’s attempts to thwart the will of voters after losing the 2020 election to Joe Biden. But given its proximity to Monday’s Iowa caucuses, which kick off the 2024 vote, the case represents an ominous harbinger of how Trump envisions a potential second term. The former commander in chief has already warned that a potential return to the White House would be devoted to “retaliation,” which would likely test constitutional restraints like never before.
On Monday, Trump claimed similar immunity in Georgia, where he wants to dismiss state-level criminal charges against him stemming from his efforts to overturn an election in the swing state.
Even if he were able to establish in court, even in the highly unlikely event, that a former president is immune from prosecution for alleged crimes he committed while in office, he would not be able to overcome the constitutional barriers surrounding the office if he wins in November. It could change how presidents operate in the future and the extent to which any autocratic tendencies can be curbed.
Trump has already given dire warnings about how he will react if his appeal is rejected and he returns to the White House.
“Of course, as President and Commander in Chief of the United States, he was entitled to immunity. He was not campaigning, the elections were long gone. “I was seeking and investigating voter fraud, which is my duty, and otherwise managing our country,” Trump wrote on his Truth social network on Monday. “If I don’t get immunity, corrupt Joe Biden doesn’t get immunity,” Trump continued to write, “if ready for impeachment.”
Once again, as he looks to win big in Iowa next week, Trump is trying to leverage his criminal threat to promote his campaign’s narrative that he is being politically persecuted.
Trump has made a career of accumulating power
During a turbulent business career, through his charismatic showbiz character on “The Apprentice,” and during a tumultuous presidency, Trump has enjoyed being the most powerful person in the room. The former president, impeached twice and four times, often gives the impression that the rules and laws that govern everyone else don’t apply to him. He pleaded not guilty to all criminal charges against him.
His appeal to a three-judge appeals panel is expected to end up at the Supreme Court, which rejected special prosecutor Jack Smith’s request to bypass the appeals court and expedite the case without comment or express dissent. Many experts see Trump’s appeal as an attempt to delay his trial, which was scheduled to begin in March, until the November election. But no one can deny that it also fits Trump’s way of trying to bend power to his will.
He argues that his efforts to subvert the 2020 elections were consistent with his official duties as President, as set out in the Constitution, to ensure that laws are faithfully implemented. But to suggest that attempting to disrupt the transfer of power falls somewhere within the duties of the president is a perversion of office. The President has no constitutional role in counting votes or certifying election results.
Smith, who is leading the federal election investigation, warned in an appeals court filing that Trump’s position if upheld could open the way for future American leaders to run erratically, saying it “threatens to license presidents. Crimes to stay in office.” .” Under Trump’s interpretation of the law, the president would be immune from prosecution for such violations even if he is no longer in office.
Judge Tanya Chutkan, who will oversee Trump’s federal election trial if he loses his appeal and moves forward, could describe Trump’s entire vision for the presidency in rejecting his arguments to her lower court. He wrote that “his four years of service as Commander in Chief did not give him the divine right of kings to escape criminal liability governing his fellow citizens.”
The idea that Trump was actually above the law (and might be in the future) was rejected by many judges, as it seemed to go against a basic American principle.
In another appeals court case in Washington, Chief Justice Mr. Srinivasan last month struck down one of Trump’s key beliefs that anything the president says or does in office is immune from liability.
The president “does not spend every minute of every day in the discharge of official responsibilities,” Srinivasan’s opinion said in a ruling that the former president could be sued in civil court over the events surrounding the January 6, 2021, attack on the US Capitol by his supporters. “And when he acts outside the functions of his office, he does not continue to enjoy immunity. …When you act in a private, unofficial capacity, you are subject to civil lawsuits like any private citizen.”
“Presidents are not kings”
The former president’s view of unfettered access to presidential power is similar to that of former President Richard Nixon, who was forced to resign in 1974 due to the Watergate scandal. Illegal,” Nixon said in his famous series of post-presidential interviews with David Frost.
While Trump was still president, another appeals court judge, Ketanji Brown Jackson, who has been elevated to the Supreme Court by Biden, asserted his authority when he ordered White House counsel Donald McGahn to testify before the House of Representatives. Russia investigation. Jackson cited founders James Madison and Alexander Hamilton and French diplomat Alexis de Tocqueville to explain the nature of the presidency.
Former Presidents Donald Trump and Richard Nixon
“Simply put, the main conclusion of the last 250 years of recorded American history is that presidents are not kings,” Jackson wrote.
Trump would disagree. He has often argued that presidents have absolute power, and his four-year term was a constant exercise in fighting the limits that courts, historical precedent, and his own lawyers and White House staff tried to impose. Trump, for example, insisted that a phone call in which he appeared to use the prospect of military aid to pressure Ukrainian President Volodymyr Zelensky to announce an investigation into Biden and his family was “absolute.” (The House impeached him for abuse of power on that issue, but the Senate did not impeach him.) He made similar arguments when evidence emerged that he had allowed Republican election officials in Georgia to “find” enough votes to overturn Biden’s electoral victory in a crucial swing state. requested for.
Trump’s beliefs and misunderstandings about the job of the presidency were perhaps best summed up in his July 2019 statement that the Constitution gave him inalienable power. “I have an Article II, where I have the right to do whatever I want as president,” he said. “But I don’t even talk about it.” Article II of the Constitution establishes the duties of the President (but does not, at least on a traditional interpretation, imply unlimited executive power).
These arguments could be instrumental in resolving Trump’s deeply dangerous legal problems. And as a constitutional matter, they can resonate for generations to come. But his status as a dominant figure in the Republican Party, his extreme rhetoric and his promises to wield strongman power – a key part of his appeal to his supporters – mean he is also an important and urgent political issue.
Trump left no doubt that if he were to return to the White House, he would first use presidential powers to try to end his criminal liability by closing his federal cases. He has also vowed to gut agencies like the FBI, which he sees as tools of the “deep state” that want to capture him.
Biden warned in a speech on Friday that Trump is a serious threat to American democracy.
“Trump’s attack on democracy is not just part of his past. This is what promises for the future. He is speaking clearly. He’s not hiding the ball,” Biden said.
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