Trump's Presidential Immunity Defense

Former President Donald Trump is expected to file a motion to dismiss the January 6th case against him based on a theory of presidential immunity. This defense argues that the president is immune from criminal prosecution for actions related to their official duties. Trump's lawyers may cite the case of Nixon v. Fitzgerald, where the Supreme Court held that a former president has absolute immunity for civil damages within the outer perimeter of their Article II powers. The defense may argue that this privilege of immunity should extend to criminal matters as well. Additionally, they may use a separation of powers argument, claiming that Congress cannot criminalize presidential conduct within the outer perimeter of their Article II powers. However, these arguments face several challenges. The conduct alleged in the indictment goes beyond the scope of Trump's Article II authority, including pressuring officials and inciting the riot. Moreover, previously, in the blasting game case, a judge rejected the presidential immunity argument in the civil context. The Department of Justice has also stated that a president's speech on a matter of public concern is not protected by absolute immunity if it incites imminent private violence. The prosecution can counter the immunity defense by arguing that the Constitution does not confer authority to the president for such acts, and that they fall under the category of high crimes and misdemeanors, which is within the realm of impeachment and criminal prosecution. While the presidential immunity defense may face an uphill battle, it presents a strategic opportunity for delay and could potentially be reviewed by higher courts.