President Trump’s request that the January 6 case against him be dismissed on the grounds of presidential immunity is a potentially precedent-setting assertion of constitutional prerogative that appears destined for the Supreme Court. 

The filing to Judge Tanya Chutkan, who once wrote in regard to Mr. Trump that “presidents are not kings” and has meted out harsh sentences to January 6th defendants, brings into focus the former president’s defense strategy against charges that he conspired to obstruct the certifying of the 2020 presidential election and that he sought to deprive Americans of their right to the ballot. 

The motion to dismiss is replete with references to Supreme Court precedent, the Constitution, and the Federalist Papers. It claims not only double jeopardy but that the “incumbent administration has charged President Trump for acts that lie” at “the heart of his official responsibilities as President.” In doing so, it maintains that “efforts to ensure election integrity” are part of the president’s job. 

The Constitution literally tasks the president with “tak[ing] Care that the Laws be faithfully executed.” The Supreme Court, in Nixon v. Fitzgerald, held that this obligation means that the commander in chief enjoys immunity “for acts within the ‘outer perimeter’ of [the President’s] official responsibility.” Mr. Trump glosses this to mean that he is “absolutely immune from prosecution” for “actions that are within the ambit of his office.”

The national parchment also notes that “the executive Power shall be vested in a President of the United States.” In a case from 1988, Morrison v. Olson, Justice Antonin Scalia writes in dissent that “this does not mean some of the executive power, but all of the executive power.” The president is unique in this way, as authority is fractionated in the legislative and judicial branches.

The success of the motion could turn on Mr. Trump’s assertion that a “president’s motivations are not for the prosecution or this Court to decide,” meaning that Special Counsel Jack Smith’s assertion that Mr. Trump knew the election was not stolen and persisted in contesting it anyway, would be beside the point. What would matter would be the institution, not the intention.

The motion acknowledges that “no court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act,” though the high court in Fitzgerald found that such immunity is applicable in civil matters because “The President occupies a unique position in the constitutional scheme.” The “singular importance of the President’s duties” requires protection from nettlesome suits. 

Arguing that presidential immunity is not just an outgrowth of the common law but is rooted in the separation of powers — the code of the Framers’ design — Mr. Trump warns of the ability of prosecutors and other officials to “constrain the President’s exercise of executive judgment through threats of criminal prosecution.” That would allow “political opponents to usurp” the president’s position in the constitutional order. 

Constitutional scholars will likely pay special attention to Mr. Trump’s contention that the “Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Here, President Trump was acquitted by the Senate for the same course of conduct.”

The national parchment ordains that a “convicted” official — like a president — “shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” The question, though, is what of an official who is not “convicted” by the Senate, but acquitted?   

Mr. Trump answers that once he was acquitted by the Senate of “incitement to insurrection,” he “remains immune from prosecution” for the same underlying activities. His attorneys tell Judge Chutkan that Mr. Smith “cannot second-guess the judgment of the duly elected United States Senate,” which judged him “not guilty.”

The New York Sun has been marking this issue since May 2022, when it issued a news story on the January 6 Committee. The Sun carried an editorial on the subject in November and in May revisited the subject in an editorial called “President Trump’s Jeopardy.”

A different view is taken, though, by the Department of Justice.  In a memorandum from 2000, government lawyers allowed that the constitutional text “is ambiguous” when it comes to the immunity of “officials who have been impeached and not convicted.” It also allows that Mr. Trump’s perspective “has some force” and is, all told, a “reasonable argument.”  

The DOJ, though, in 2000, found that the position that an acquittal vouchsafes immunity is “ultimately unconvincing,” although the “question is more complicated than it might first appear.” Nevertheless, the government takes the stance that the “Constitution permits a former president to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.” 

In finding that an acquittal after  impeachment does not bar subsequent prosecution and that an impeachment trial is not an “instance of jeopardy within the meaning of the Double Jeopardy Clause,” that memorandum appears to be a significant — but not dispositive — barrier to Mr. Trump’s case. Its conclusion is not binding, and Judge Chutkan is at liberty to come to her own findings on this case of first impression. Either way her decision is likely to be constitutional catnip for the appeals courts. 

Mr. Trump, pivoting from constitutional interpretation to historical reflection, notes that “234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former President for his official acts does not exist.”