Opinion: Why the hush money trial judge was right

Editor’s Note: David Orentlicher is the Judge Jack and Lulu Lehman Professor at the William S. Boyd School of Law at University of Nevada, Las Vegas, where he specializes in constitutional law and health law. He also serves as a Democrat in the Nevada Assembly. The views expressed in this commentary are his own. View more opinion on CNN.

Even though the US Supreme Court will decide later this spring whether presidents possess absolute immunity from criminal charges, New York Judge Juan Merchan properly rejected former President Donald Trump’s claim of immunity to delay his impending hush money payments trial.

According to the judge, Trump waited too long to raise his claim of immunity. Trump filed his claim for immunity on March 7, less than three weeks before the scheduled trial date at the time.

Yet this was not a claim that Trump only recently discovered. When he tried last May to move his trial to federal court, his legal filings referred to his belief that he was entitled to immunity from prosecution. In October, he sought dismissal of his federal election interference charges on the ground that he is immune from prosecution. Trump easily could have claimed immunity in the hush money payments case when he filed his omnibus pre-trial motions with Merchan last September. In the absence of good cause for Trump’s waiting until March 7, the judge ruled appropriately.

Even if Trump had filed his motion in September, his immunity claim faced other serious hurdles. First, while former presidents enjoy absolute immunity from civil liability for their official acts, they almost certainly do not enjoy absolute immunity from criminal charges. Indeed, the US Court of Appeals for the DC Circuit rejected such a claim in Trump’s federal election charges case earlier this year.

According to Article I, Section 3 of the Constitution, if a president has been impeached by the House and convicted by the Senate, punishment is limited to removal from office and disqualification from holding office in the future. Nevertheless, a convicted president is still “subject to Indictment, Trial, Judgment and Punishment, according to law.”

Trump, therefore, can’t actually believe he’s completely immune from prosecution. That means his claim of immunity reduces to a claim that he can only be prosecuted criminally once he has been impeached and convicted. While he was impeached twice, he was never convicted by the Senate.

But as the DC Circuit observed, Trump misreads the Constitution. The Framers were not restricting criminal prosecution of former presidents to those who had been impeached and convicted. Rather, they were making clear that the Constitution’s limits on punishment by the Senate after impeachment applied only to the impeachment process and not to other potential punishments for a villainous president. Criminal misconduct by a president can be punished either through the impeachment process, by prosecution and conviction after leaving office, or both. The Framers also were making a second point clear: Indicting an impeached and convicted president would not violate the double jeopardy principle that a person cannot be prosecuted twice for the same crime.

Finally, even if there is some degree of immunity from criminal prosecution for former presidents, the immunity would extend only to official acts taken while in office. Trump recognizes this point when he asks the US Supreme Court for immunity only “for a President’s official acts.” But Trump is being prosecuted for conduct about a private matter that took place before he became president — the alleged hush money payments to Stormy Daniels so she would not disclose their intimate relationship. Even a very broad definition of an official act would not reach Trump’s pre-presidential personal activities.

While the Supreme Court has not yet weighed in on immunity from criminal charges for former presidents, it has addressed related questions in ways that support rejection of immunity for Trump. In United States v. Nixon, involving a subpoena for President Richard Nixon’s audiotapes and other documentation of meetings related to the Watergate scandal, the court held that even sitting presidents must respond to criminal subpoenas in federal court cases, and in Clinton v. Jones, involving sexual harassment allegations against then-President Bill Clinton, the court held that even sitting presidents lack immunity from federal civil lawsuits for conduct that occurred before they took office.

Most importantly, a third Supreme Court case addressed a state court proceeding against Trump for his pre-presidential conduct. In Trump v. Vance, the court considered the propriety of a criminal subpoena served on Trump’s accounting firm. The case started in 2018 when former New York District Attorney Cyrus Vance Jr. initiated an investigation into unspecified “business transactions” that “may have violated state law.” In 2019, Vance directed the accounting firm to “produce financial records relating to the President and business organizations affiliated with him” dating back to 2011. Trump tried to block the subpoena, arguing that “a sitting President enjoys absolute immunity from state criminal process,” and the court rejected the claim of absolute immunity.

In doing so, the court noted an important acknowledgment by Trump: He “concedes — consistent with the position of the Department of Justice — that state grand juries are free to investigate a sitting President with an eye toward charging him after the completion of his term.”

In trying to delay his impending trial, Trump invoked the recent ballot disqualification decision by the Supreme Court to suggest that it overrides the standard immunity analysis. If states cannot interfere with a presidential election by disqualifying a candidate under the 14th Amendment, perhaps they cannot interfere with a presidential election by prosecuting a candidate under their criminal statutes. Maybe Trump has temporary immunity from prosecution.

This argument lacks merit for two key reasons. First, the court’s concern in Trump v. Anderson applied to the role of states in regulating a candidate’s access to the ballot for national offices, and that concern is not implicated at all by Trump’s prosecution. Indeed, it would be deeply problematic if criminal suspects could suspend their prosecutions by announcing their candidacy for Congress or the White House.

Second, in an important way, it is preferable that Trump be held accountable for alleged crimes by state prosecutors than by federal prosecutors. There is an inherent conflict of interest when a sitting president’s Department of Justice wields its law enforcement powers against the president’s principal challenger for re-election. The conflicts of interest concerns would not apply to state prosecutions of Trump (nor would they apply to federal prosecutions after  Election Day).

Ironically, Trump’s arguments for immunity are weakest for his criminal charges that have the least merit. As I’ve written before, political candidates should not be prosecuted for trying to maintain the privacy of their adult, consensual intimate relationships. But if the courts permit criminal charges for such conduct, Trump’s claims of immunity should not stand in the way.

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