Trump Immunity: New Developments in Appeal to Supreme Court


Jordan Sekulow

February 13

4 min read

Election Law



The U.S. Court of Appeals for the D.C. Circuit was “unpersuaded” by President Trump’s arguments for presidential immunity for any actions he took on January 6. So President Trump just appealed to the U.S. Supreme Court in his federal election interference case. If the Supreme Court takes up the case, it will further delay the prosecution’s attempt to have a trial before the election.

Fox News reports on the arguments for presidential immunity in Trump’s appeal:

“If the prosecution of a President is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination.” . . .

The request states that the president’s “political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution.”

“This threat will hang like a millstone around every future President’s neck, distorting Presidential decision-making, undermining the President’s independence, and clouding the President’s ability ‘to deal fearlessly and impartially with’ the duties of his office.’”

Trump’s lawyers added, “Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.”

The lawyers for President Trump are exactly right. Denying presidential immunity to former Presidents weakens the office of the President. They will be afraid to make important decisions for fear of being criminally prosecuted.

My dad, ACLJ Chief Counsel Jay Sekulow, represented Trump during his impeachment trial at the Supreme Court. He argued for presidential immunity for many of the same reasons cited by Trump’s lawyers. My dad also explained how the Founding Fathers didn’t want local magistrates going after the President.

Here’s the big question: At what point does presidential immunity cease and criminal charges can be brought against a former President for actions taken while in office? Further, what is an official action, a pseudo-official action, a non-official action, and a peripheral action? So, yes, it’s really complicated, and courts don’t love dealing with ranges of definitions.

My dad pointed out today that Trump’s investigating the election results falls under the responsibilities of a President: “I would say elections go to the core of official acts in the sense of faithfully executing the laws, which is a mandate from the Constitution to the Chief Executive, the President of the United States.” Clearly, the Left rejects this notion altogether and believes he should be imprisoned for it.

Let’s consider the implications of any President being criminally prosecuted for their actions while they were President. This would reverse the order of the Constitution and prioritize the Judicial Branch over the Executive Branch – giving more power to the courts. Do we want a future where Presidents are afraid to make hard decisions because they could go to prison?

Unfortunately, the Court of Appeals went with a very limited view of immunity, and it ruled that presidential immunity ends the moment a President exits office. In other words, at 12:01 p.m. on Inauguration Day, former Presidents no longer have immunity protecting them from prosecution for any actions taken while in office.

The Supreme Court needs to say the Court of Appeals got it wrong and make a ruling that clearly defines the parameters of presidential immunity, settling this issue once and for all. The American people need this case resolved before the 2024 election.

Otherwise, how will this case affect voters wondering if they should vote for someone who could potentially be behind bars? Such an event would be unprecedented in U.S. history and must be avoided at all costs.

We don’t need to open Pandora’s box and create an unbelievable form of election interference – the Supreme Court must settle this issue quickly. The American people need all these legal issues resolved so we can have a free and fair presidential election.

Today’s Sekulow broadcast included a full analysis of the latest developments in President Trump’s request for presidential immunity. We also gave an update on our ongoing U.S. Supreme Court fight to preserve your right to vote for the candidate of your choice.

Watch the full broadcast below: