Former President Trump’s immunity arguments, explained

On Tuesday, the DC Circuit Court of Appeals heard arguments from former President Donald Trump as to whether he should be immune from criminal liability due to his status as a former President.

Trump’s arguments can be summarized in three basic categories. First, Trump argues that Presidents should be immune from criminal prosecution when they are performing official duties. Under current Supreme Court precedent, Presidents are already immune from civil liability for actions taken while President, so long as those actions were within the “outer perimeter” of Presidential duties.

Trump argues that the actions for which he is facing indictment regarding to January 6 do, in fact, fall under his Presidential duties, and that the current principle regarding civil liability should be expanded to protect Presidents from criminal liability as well.

Second, Trump argues that the Impeachment Clause of the Constitution requires an impeachment and conviction by Congress before a President could be criminally charged. Because Trump was impeached but not convicted by Congress for actions with regards to January 6, he argues that the Impeachment Clause precludes him from being criminally prosecuted for the same actions.

Third, Trump makes a policy argument that permitting criminal prosecution of a former President would open a “Pandora’s Box” of problems. If the prosecution were allowed to continue, Trump argues, then future Presidents would run the risk of being criminally prosecuted by future Presidents for solely political purposes. Permitting criminal prosecution of Presidents would also limit the President’s authority, requiring him or her to be considering the possibility of prosecution when taking action as President.

The three-judge panel will render a decision on the arguments, and such decision will likely come quickly. While it is possible the panel decision could be considered by the full Court of Appeals, it is more likely that the losing party will ask the United States Supreme Court to take up the issue and render a final judgment.