Donald Trump’s lawyers argue that he cannot be prosecuted for his “official acts” as president, which they say included his efforts to reverse Joe Biden’s election. As one judge noted when a skeptical D.C. Circuit panel probed the implications of that position earlier this month, it could literally give presidents a license to kill by ordering the assassination of their political opponents. But even that alarmingly broad understanding of presidential immunity seems modest compared to the position that Trump recently laid out in an all-caps Truth Social post.
“A PRESIDENT OF THE UNITED STATES MUST HAVE FULL IMMUNITY, WITHOUT WHICH IT WOULD BE IMPOSSIBLE FOR HIM/HER TO PROPERLY FUNCTION,” Trump shouted on his social media site around 1 a.m. on Thursday. “ANY MISTAKE, EVEN IF WELL INTENDED, WOULD BE MET WITH ALMOST CERTAIN INDICTMENT BY THE OPPOSING PARTY AT TERM END. EVEN EVENTS THAT ‘CROSS THE LINE’ MUST FALL UNDER TOTAL IMMUNITY, OR IT WILL BE YEARS OF TRAUMA TRYING TO DETERMINE GOOD FROM BAD. THERE MUST BE CERTAINTY.”
To some extent, Trump’s rant echoes the argument his lawyers have made in trying to block the federal charges he faces as a result of his attempts to remain in power after he lost reelection in 2020. But “TOTAL IMMUNITY” as imagined by Trump omits two qualifications they allow: that a former president can be prosecuted for “purely private conduct,” and that he can be prosecuted even for “official acts” if they were the basis for an impeachment that resulted in a Senate conviction. The latter exception is hard to deny, since the Constitution explicitly says a president who is impeached and removed from office “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Trump, by contrast, says “ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER.” The implication seems to be that Trump would be immune from prosecution even if his second impeachment had culminated in a Senate conviction. And that would be true even if the impeachment had involved actions that Trump himself thinks “CROSS THE LINE” between legitimate exercises of presidential power and criminality, such as the scenario that D.C. Circuit Judge Florence Pan imagined when she described a president who “ordered SEAL Team Six to assassinate a political rival.”
Trump’s concerns about the consequences of holding public officials accountable for misconduct extend beyond the prosecution of former presidents. In his Truth Social post, he likened that situation to safeguards aimed at preventing police officers from violating people’s constitutional rights. “YOU CAN’T STOP POLICE FROM DOING THE JOB OF STRONG & EFFECTIVE CRIME PREVENTION BECAUSE YOU WANT TO GUARD AGAINST THE OCCASIONAL ‘ROGUE COP’ OR ‘BAD APPLE,'” he wrote. “SOMETIMES YOU JUST HAVE TO LIVE WITH ‘GREAT BUT SLIGHTLY IMPERFECT.'”
In Trump’s view, remedies for police abuse, such as insisting that officers obey the Constitution or authorizing criminal charges and civil rights lawsuits when they don’t, are dangerous to public order because they threaten to “STOP POLICE FROM DOING THE JOB OF STRONG & EFFECTIVE CRIME PREVENTION.” If tolerating “THE OCCASIONAL ‘ROGUE COP’ OR ‘BAD APPLE'” is the price of fighting crime, he thinks, “SOMETIMES YOU JUST HAVE TO LIVE WITH ‘GREAT BUT SLIGHTLY IMPERFECT.'”
So Trump is not necessarily just trying to save his own skin here: His position on presidential immunity is consistent with his broader attitude toward government power. Just as presidents should not have to worry about criminal prosecution when they “CROSS THE LINE,” he thinks, police officers should not have to worry that they could face charges or litigation simply because they broke the law, and maybe a few heads, while doing their jobs.
Trump has explicitly made that argument in recent campaign appearances. “We will restore law and order in our communities,” he said in New Hampshire last month. “I’m going to indemnify, through the federal government, all police officers and law enforcement officials throughout the United States from being destroyed by the radical left for taking strong actions against crime.”
That proposal ignores the fact that police officers already are routinely indemnified by their employers when they face civil rights lawsuits. Worse, it reflects a judgment that the threat of legal liability is intolerable because it supposedly has a paralyzing impact on law enforcement. Police officers must be shielded “against any and all liability,” Trump argues, because otherwise they will be “forced to let a lot of bad people do what they want to do.” As Trump sees it, accountability is the enemy of effectiveness.
The same authoritarian impulse is evident in Trump’s distaste for police restraint. In a 2017 speech at Long Island’s Suffolk County Community College, he derided officers who protect handcuffed arrestees from injury by pushing down their heads while placing them in squad cars. “You can take the hand off,” he said. The Suffolk County Police Department responded with a statement saying it takes procedures aimed at protecting arrestees “extremely seriously,” adding that “we do not and will not tolerate roughing up of prisoners.”
Trump’s implicit endorsement of roughing up prisoners is of a piece with his oft-repeated support for executing drug dealers and his admiration for brutal rulers in China, Russia, North Korea, and the Philippines. Republican presidential candidate Nikki Haley remarked on that affinity in the run-up to Tuesday’s primary in New Hampshire. Trump had a “bromance with Putin,” exchanged “love letters” with Kim Jong Un, and praised Xi Jinping “a dozen times after China gave us COVID,” she said. “When you are talking about contrasts in foreign policy, you don’t praise dictators and thugs who want to kill us.”
Whatever the relative merits of Haley’s foreign policy positions, the pattern she noted is further evidence of Trump’s view that strong leaders must be free to take decisive action, unencumbered by the law. That is the plain meaning of his position on presidential immunity. The “CERTAINTY” he demands is “GREAT” for dictators but more than “SLIGHTLY IMPERFECT” for the rest of us.