By Grover D. Merritt
In Trump v. Anderson, 601 U.S. 100 [144 S.Ct. 662, 218 L.Ed.2d. 1] (March 4, 2024) and Trump v. United States, 603 U.S. _ [144 S.Ct. 2312, L.Ed.2d. __] (July 1, 2024), former President Donald Trump scored victories on ballot and immunity issues as he seeks to join Grover Cleveland as a president to serve two non-consecutive terms. These decisions frame the current presidential election season and define how future presidents may be considered under the criminal law.
Anderson
Anderson involved review of a Colorado Supreme Court decision denying Trump a presidential primary ballot position because he purportedly participated in an insurrection on January 6, 2021, regarding the Electoral College vote certification for Joe Biden to become President. In the case, opposing counsel to Trump had argued that the Fourteenth Amendment to the U.S. Constitution and statutes appurtenant thereto barred him from any ballot in the course of seeking the presidency. The Fourteenth Amendment’s Section Three provides that one who has previously taken an oath to support the Constitution and then engages in “insurrection or rebellion” against the United States cannot hold a civil or military office later.
The Denver trial court partially ruled against Trump, finding while he participated in insurrection, the insurrection provisions did not apply. The Colorado Supreme Court, however, ordered their secretary of state not to list Trump on the ballot or count any “write in” votes for him.
The U.S. Supreme Court, in turn, held that only the Congress may disqualify persons from holding federal offices or from being federal candidates under the Fourteenth Amendment’s Section Three. “We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.”
Trump v. United States
In Trump v. United States, a grand jury indicted Trump on allegations of 2020 election interference and the January 6 events. Trump challenged the indictment, arguing that his acts as president were immune from use against him in criminal prosecutions. Such prosecutions cropped up in New York County, New York (Manhattan); Fulton County, Georgia (Atlanta); D.C.; and Southern Florida as the election year loomed. The federal district court and the court of appeals concluded that Trump was not immune because his presidential actions allegedly violated generally applicable criminal laws.
The U.S. Supreme Court reversed those decisions and returned the case to the district court. The Court’s ruling had five significant sections regarding a president’s actions: (1) For acts involving core constitutional powers-such as issuing pardons or firing executive officers-former presidents are immune from subsequent prosecution. (2) For “official acts,” that is, acts within the perimeter of the president’s official responsibilities, former presidents are at least presumptively immune. That is, such acts are immune unless the prosecution shows that criminalizing the relevant act poses “no dangers of intrusion on the authority and functions of the Executive Branch.” (3) There is no immunity for “unofficial acts.” (4) However, immunized conduct cannot be used as evidence in prosecutions for such unofficial acts. (5) Finally, a president’s motives cannot be used in separating official acts from unofficial acts.
Thus, the Court held, Trump is immune from prosecution related to communications with the Justice Department. The Court also ruled that Trump is at least presumptively immune from prosecution regarding Electoral College discussions with former Vice President Mike Pence. Categorizing other Trump acts as “official” or “not official” was left to the trial court.
This decision mostly tracks prior cases where presidents argued that they were immune from legal action, such as Clinton v. Jones, 520 U.S. 681 (1997) (finding no tolling of civil litigation over pre-presidency acts) and a triad of cases involving President Richard M. Nixon. See United States v. Nixon, 418 U.S. 683 (1974) (noting president must comply with grand jury subpoena for records); Nixon v. Fitzgerald, 457 U.S. 731 (1982) (dividing “official acts” from “unofficial acts” for presidential civil immunity); Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
About the author
Grover D. Merritt is a retired prosecutor. Mr. Merritt received his law degree from Marquette University Law School in Milwaukee, WI. in 1984 and was admitted to the State Bar of California that December.
About the article
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This article was originally published in the Communiqué (Nov. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-nov-2024/.
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