Trumpists say failure of Trump immunity argument will force them to conduct the political prosecutions they already want to do

Written by Matt Gertz

Published

Right-wing commentators are adopting Donald Trump’s spin that if he is not granted executive immunity from prosecution over alleged crimes he committed during his presidency, no future president will be able to avoid prosecution after leaving office. 

“A president needs immunity because otherwise every president, you know, will be making a decision through the prism of, ‘Oh, if I do this, what’s going to happen after I leave the White House?’” Fox News host and Trump adviser Sean Hannity said on Tuesday. 

The Trumpists’ thinly veiled threat of retribution, with its “look what you made us do” insinuation, is preposterous given the longstanding, loud calls from Trump and his supporters to prosecute his political enemies, including former President Barack Obama and President Joe Biden.

While chief executives have faced arrest, prosecution, and imprisonment in other countries with mature democratic governments, Trump is the first former U.S. president to ever be indicted. He currently faces 91 criminal counts across four state or federal prosecutions. His media allies — rather than reckon with the unique criminality of their standard-bearer — have spent the last year making excuses for Trump, pretending that he did nothing wrong, and presenting him as the victim of politicized prosecutions.

Trump is currently attempting to halt one of the four prosecutions — the federal probe of his attempt to subvert the results of the 2020 presidential election — by making a sweeping declaration of absolute executive immunity, effectively claiming that a president’s conduct while in office cannot be subject to prosecution. A federal district court rejected that claim, and on Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals affirmed the district court’s ruling, stating, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches,” they wrote. “Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

Trump responded to the ruling by arguing that such immunity — which none of his predecessors had ever needed to establish — was vital to the country’s very survival because without it, future presidents (perhaps like himself) would attempt to prosecute past presidents of the other party. 

“If not overturned, as it should be, this decision would terribly injure not only the Presidency, but the Life, Breath, and Success of our Country. A President will be afraid to act for fear of the opposite Party’s Vicious Retribution after leaving Office,” he wrote on Truth Social. 

His son, Donald Trump Jr., turned the subtext of the statement closer to text by asking, “If this becomes a norm would a Trump DOJ prosecute Obama for droning an American?”

The appeals panel dispatched this logic in its ruling, as Lawfare explained:

The judges are not impressed by Trump’s admonitions of a potential chilling effect on future presidents. They note that “past Presidents have understood themselves to be subject to impeachment and criminal liability … so the possibility of chilling executive action is already in effect.” While Trump argues that future presidents unprotected by criminal immunity will be subject to harassing prosecutions after leaving office, the panel is less worried, pointing to the variety of protections—ethical obligations within the executive branch; the constraints of the grand jury system—that already exist against politically-motivated charges. What’s more, the panel rightly notes that past presidents have not believed themselves immune from possible prosecution, and yet don’t appear to have been deterred from taking aggressive actions. In fact, the panel suggests, what Trump calls a chilling effect may actually be a positive thing: “the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior.”

The underlying principle Trump and his allies are pushing is that he must be treated as above the law — and the implicit threat is that if he isn’t, and he regains power, he’ll unleash a wave of political prosecutions. But that’s a crazy argument for the Trumpist media to make given both their demands for the prosecutions of Democrats before and during Trump’s presidency and their explicit calls for future political prosecutions by a Trump DOJ, with targets very much including both Obama and Biden. 

To adopt Trump’s argument is to effectively acknowledge you’ve just been bullshitting up to this point but that after this ruling, you will be forced to go along with partisan prosecutions of Democrats. And that’s what they’re doing. 

X (formerly Twitter) filled up with right-wing influencers suggesting — with barely concealed glee — that this ruling opens the door for prosecuting Biden and Obama.

And from there, the argument swiftly spread through the right-wing ecosystem to right-wing cable news.

“Democrats will reap the whirlwind because this is the rules they play by,” former White House deputy press secretary Hogan Gidley said on Newsmax. “Republicans will indict Joe Biden for not following the law, for not enforcing the law on the border, for example, and that should be a slam dunk case. So you open this Pandora's box, Democrats, you're going to get what you -- get exactly what you wanted.” 

“Doesn't this mean the Trump 47 Justice Department can prosecute President Obama for capital murder for his extrajudicial drone strike of two American citizens, including a minor?” GOP political operative Mike Davis said that night on Fox’s The Ingraham Angle. “The Supreme Court now has to take this case because this is so much bigger than President Trump and their Trump derangement syndrome.”

Davis, whom Donald Trump Jr. touted as a potential attorney general pick if his father returns to the White House, has claimed to have a “growing” list of progressives he would order indicted — a list he has said includes me and my colleagues — though at times, he has said this is just a bit. But the right’s bad-faith immunity argument seeks to turn that bit into a promise — while blaming Democrats along the way.