Amicus Curiae Brief — Donald J. Trump, Petitioner v. United States

Supreme Court briefMar 19, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-939

In the Supreme Court of the United States

DONALD J. TRUMP,

Petitioner,

UNITED STATES,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR KANSAS REPUBLICAN PARTY AND

17 OTHER STATE AND TERRITORIAL

REPUBLICAN PARTIES AS AMICI CURIAE

IN SUPPORT OF PETITIONER

CRAIG L. UHRICH

Counsel of Record

CHRISTOPHER J. MCGOWNE

McGowne & Uhrich P.A.

222 Center Avenue

Oakley, Kansas 67748

(720) 878-7688

uhrich@mcgowne-uhrichlegal.com

mcgowne@mcgowne-uhrichlegal.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF THE AMICI CURIAE........................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................3

ARGUMENT ................................................................4

Presidential Immunity Is Well Established

In This Country.................................................4

A. Absolute Immunity ......................................6

B. Presidential Immunity ..............................11

II.

The Trial Court Made Insufficient Findings

To Apply The Law ...........................................18

CONCLUSION ..........................................................19

TABLE OF AUTHORITIES

Cases

Barr v. Matteo,

360 U.S. 564, 79 S.Ct. 1335 (1959) ........................ 15

Bettencourt v. Bd. of Regist. in Med. of Mass.,

904 F.2d 772 (1st Cir. 1990)..................................... 9

Brooks v. Clark County,

828 F.3d 910 (9th Cir. 2016) .................................... 8

Brooks v. Hinzman,

No. 13-CV-2410-EFM, 2015 WL 4041708 (D. Kan.

July 1, 2015) ............................................................. 4

Brosseau v. Haugen,

543 U.S. 194, 125 S.Ct. 596 (2004) .......................... 5

Butz v. Economou,

438 U.S. 478, 98 S.Ct. 2894 (1978) ...................... 6, 9

Cameron v. Seitz,

38 F.3d 264 (6th Cir. 1994) .................................... 11

Churchill v. Univ. of Colo. at Boulder,

285 P.3d 986 (Colo. 2012) ......................................... 7

Cillo v. City of Greenwood Vill.,

739 F.3d 451 (10th Cir. 2013) .................................. 4

City of Providence, Rhode Island v. Bats Global

Markets, Inc.,

878 F.3d 36 (2d Cir. 2017)........................................ 8

iii

Clark v. United States,

289 U.S. 1, 53 S.Ct. 465 (1933) ................................ 3

Cushing v. Packard,

30 F.4th 27 (1st Cir. 2022) ................................. 9, 10

Eastland v. U.S. Servicemen’s Fund,

421 U.S. 491, 95 S.Ct. 1813 (1975) .......................... 6

Egbert v. Boule,

596 U.S. 482, 142 S.Ct. 1793 (2022) ........................ 5

Goldstein v. Galvin,

719 F.3d 16 (1st Cir. 2013)....................................... 6

Harlow v. Fitzgerald,

457 U.S. 800, 102 S.Ct. 2727 (1982) ........................ 6

Harrison v. Roitman,

362 P.3d 1138 (Nev. 2015) ....................................... 8

Imbler v. Pachtman,

424 U.S. 409, 96 S.Ct. 984 (1976) ............................ 5

Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency,

440 U.S. 391, 99 S.Ct. 1171 (1979) ........................ 10

Larson v. State,

254 P.3d 1073 (Alaska 2011) ................................... 7

La Union del Pueblo Entero v. Abbott,

93 F.4th 310 (5th Cir. 2024)................................... 10

Malley v. Briggs,

475 U.S. 335, 106 S.Ct. 1092 (1986) ........................ 4

Mandel v. O’Hara,

576 A.2d 766 (Md. 1990) .......................................... 9

Marvin v. Fitch,

232 P.3d 425 (Nev. 2010) ......................................... 7

McCray v. Md. Dep’t of Transp., Md. Transit Admin.,

741 F.3d 480 (4th Cir. 2014) .................................. 10

McLinn v. Thomas Cnty. Sheriff’s Dep’t,

535 F.Supp.3d 1087 (D. Kan. 2021) ..................... 4, 5

Mitchell v. Forsyth,

472 U.S. 511, 105 S. Ct. 2806 (1985) ....................... 8

Nixon v. Fitzgerald,

457 U.S. 731, 102 S.Ct. 2690 (1982) ............. 3, 11-16

Nystedt v. Nigro,

700 F.3d 25 (1st Cir. 2012)....................................... 7

O’Connor v. Donovan,

48 A.3d 584 (Vt. 2012) .............................................. 8

Pierson v. Ray,

386 U.S. 547, 87 S.Ct. 1213 (1967) .......................... 7

Powercorp Alaska, LLC v. Alaska Energy Auth.,

290 P.3d 1173 (Alaska 2013) ................................... 8

Rehberg v. Paulk,

566 U.S. 356, 132 S. Ct. 1497 (2012) ....................... 9

Ricci v. Key Bancshares of Me., Inc.,

768 F.2d 456 (1st Cir. 1985)..................................... 7

Roberts v. Lau,

90 F.4th 618 (3d Cir. 2024) .................................... 10

Sample v. City of Woodbury,

836 F.3d 913 (8th Cir. 2016) .................................... 7

Scott v. Harris,

550 U.S. 372, 127 S. Ct. 1769 (2007) ....................... 8

Spalding v. Vilas,

161 U.S. 483, 16 S.Ct. 631 (1896) .......................... 15

State Emps. Bargaining Agent Coal. v. Rowland,

494 F.3d 71 (2d Cir. 2007)...................................... 11

Stump v. Sparkman,

435 U.S. 349, 98 S.Ct. 1099 (1978) ................ 6, 7, 15

Tenney v. Brandhove,

341 U.S. 367, 71 S.Ct. 783 (1951) ............................ 9

Tobin for Governor v. Ill. State Bd. Of Elections,

268 F.3d 517 (7th Cir. 2001) ................................ 7, 8

United States v. Burr,

25 F.Cas. 187 (No.14,694) (CC Va.1807) ............... 14

United States v. Nixon,

418 U.S. 683, 94 S.Ct. 3090 (1974). ....................... 14

United States v. Trump,

No. 23-CR-257 (D.D.C. Dec. 1, 2023) ................. 3, 18

United States v. Trump,

91 F.4th 1173 (D.C. Cir. 2024),

cert. granted, No. (23A745), 2024 WL 833184

(U.S. Feb. 28, 2024) .................................................. 3

Westfall v. Erwin,

484 U.S. 292, 108 S.Ct. 580 (1988) .......................... 7

Witzke v. City of Bismarck,

718 N.W.2d 586 (N.D. 2006) ................................ 7, 8

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 72 S.Ct. 863 (1952) .......................... 14

Other Authorities

A Sitting President’s Amenability to Indictment &

Crim. Prosecution, 24 U.S. Op. Off. Legal Counsel

222 (2000) ............................................................... 17

Memorandum from Robert G. Dixon, Jr., Assistant

Attorney General, Office of Legal Counsel, Re:

Amenability of the President, Vice President and

other Civil Officers to Federal Criminal

Prosecution while in Office (Sept. 24, 1973) ......... 17

INTEREST OF THE AMICI CURIAE1

Amicus curiae, the Kansas Republican Party

(“KRP”), is a Kansas nonprofit corporation and

political party committee. As stated in its bylaws, its

purpose is to promote the principles and objectives of

the Republican Party and elect Republican candidates

to office to the maximum extent provided for under

Kansas law. Specifically, its purpose is: “to coordinate

and unite the activities of Republicans in Kansas

through recognized . . . committees under a central,

statewide organization and serve as the official state

affiliate of the Republican National Committee. The

[KRP] is dedicated to the advancement of Republican

candidates, policies and principles and shall aid in

every way possible the Republican nominees selected

in each partisan primary. The [KRP] seeks to advance

Republican principles and beliefs by seeing them

enacted as sound public policy. The Republican Party

works to ensure its growth through voter registration

and by attracting disenfranchised members of other

political parties.”

Its interests are to elect Republicans at the state,

local and federal level and to protect its members

access to those candidates who wish to represent the

party. The KRP, along with the other Amici named

below, all of whom are state Republican parties, seeks

to be heard in this action to protect its stated interests

as this matter. The matter before this Court is one of

great significant to voters and citizens of all stripes

and political parties. The President of the United

States is the Commander in Chief and Chief Executive

1 No counsel for any party authored this brief in whole or in part.

Only amici curiae funded its preparation and submission.

Officer of the United States Federal Government. This

case stems from an open legal question: what is the

scope of immunity afforded to the President when

acting in his official capacity? As such, this is an issue

of vital national importance, and correspondingly, an

issue that is relevant and important to Republican

voters represented by the Amicus Curiae.

Amici the KRP, the Alabama, Arizona, Colorado,

Delaware, District of Columbia, Georgia, Illinois,

Kentucky, Maine, Nebraska, Oklahoma, South

Carolina, South Dakota, Virgin Islands, Virginia,

West Virginia, and Wyoming Republican Parties also

join this Brief and seek to be heard here, as a ruling

adverse to Petitioner-Appellant would injure these

other state parties because if this Court finds that the

principle of absolute immunity does not extend to the

Office of the President, this will severely weaken and

diminish the stature and effectiveness of the Office of

President of the United States, and hamper the

administration of its duties. Further, such a finding

would render the legal principles behind the doctrine

of absolute immunity meaningless, affecting elected

Democrat and Republican office holders alike.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This appeal arises from the criminal prosecution of

the former President of the United States, Donald

John Trump, on certain charges brought in the United

States District Court for the District of Columbia. See

United States v. Trump, No. 23-CR-257 (D.D.C. Dec.

1, 2023). President Trump asserted Presidential

immunity as a complete defense. That argument was

rejected by the District Court. President Trump

subsequently appealed to the United States Court of

Appeals for the District of Columbia, which upheld the

ruling of the District Court determining that

“functional policy considerations rooted in the

structure of our government do not immunize former

Presidents from federal criminal prosecution.” United

States v. Trump, 91 F.4th 1173, 1198 (D.C. Cir. 2024),

cert. granted, No. (23A745), 2024 WL 833184 (U.S.

Feb. 28, 2024).

In making such a determination, the Court of

Appeals opined that “federal prosecution of a former

President fits the case ‘[w]hen judicial action is needed

to serve broad public interests’ in order to ‘vindicate

the public interest in an ongoing criminal prosecution.’

The risks of chilling Presidential action or permitting

meritless, harassing prosecutions are unlikely,

unsupported by history and ‘too remote and shadowy

to shape the course of justice.’” Id. (quoting Nixon v.

Fitzgerald, 457 U.S. 731, 754, 102 S.Ct. 2690 (1982);

Clark v. United States, 289 U.S. 1, 16, 53 S.Ct. 465

(1933)). But the Court of Appeals’s decision is rooted

in nebulous assertions and broad assumptions,

seemingly reaching its conclusions under the guise of

public policy considerations, as opposed to

foundational principles of law. The result of such

reasoning is a rash political decision, as opposed to a

well-reasoned legal one.

The United States Court of Appeals for the District

of Columbia Circuit erred in determining that a

President acting in his official capacity is not entitled

to immunity.

ARGUMENT

I. Presidential Immunity Is Well Established In

This Country

Our courts granting different levels of immunity to

various government officials has become so standard

that it strains credibility to imagine that the President

does not enjoy some degree of immunity under our

laws. For example, local law enforcement officers are

entitled to qualified immunity, which “shields public

officials . . . from damages actions unless their conduct

was unreasonable in light of clearly established law.”

See, e.g., McLinn v. Thomas Cnty. Sheriff’s Dep’t, 535

F.Supp.3d 1087, 1099 (D. Kan. 2021) (quoting Cillo v.

City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir.

2013)). Similar protection is given to social workers

acting on behalf of the state. See, e.g., Brooks v.

Hinzman, No. 13–CV–2410–EFM, 2015 WL 4041708

at *3-7 (D. Kan. July 1, 2015). This Court has stated

that qualified immunity “provides ample protection to

all but the plainly incompetent or those who

knowingly violate the law.’” Malley v. Briggs, 475 U.S.

335, 341, 106 S.Ct. 1092 (1986). Importantly, even this

lower level of immunity shields officers such that if it

is not clearly established that the officer’s conduct

would violate the Constitution, then the officer is not

“subject to liability or, indeed, even the burdens of

litigation.” McLinn, 535 F.Supp.3d at 1099, 1104

(but finding that a “reasonable officer in those

circumstances would understand that [acting as he

did] was contrary to [established law]”) (emphasis

added) (quoting Brosseau v. Haugen, 543 U.S. 194,

198, 125 S.Ct. 596 (2004)). If this level of protection is

given to social workers and patrol deputies at the local

level, it is difficult to imagine that the President is not

entitled to an immunity that would, likewise, protect

him from the burdens of litigating the matter.

As explained in more detail below, beyond entry

level local law enforcement officers, many other

government officials receive immunity. Prosecutors,

for example, enjoy absolute immunity, as they did at

common law. See, e.g., Imbler v. Pachtman, 424 U.S.

409, 427, 96 S.Ct. 984 (1976). At the federal level, law

enforcement agents, though not having absolute

immunity, enjoy a level of immunity that shields them

in all but the narrowest circumstances. See generally

Egbert v. Boule, 596 U.S. 482, 142 S.Ct. 1793 (2022).

Regardless of one’s opinion on the propriety of

absolute immunity, as with local officials, if patrol

level Border Patrol agents enjoy such firm immunity,

it is difficult to see why the President, who is the head

of the same Executive Branch under which Border

Patrol agents operate, would not enjoy at least the

same level of protection. An examination of case law

involving absolute immunity suggests as much.

A. Absolute Immunity

The Court of Appeals and the District Court erred

in finding that a sitting President is not afforded

immunity while acting is his official capacity.

Legal immunity is far from a novel concept. Rather,

immunity is an important legal concept in American

jurisprudence that has existed since the common law

and has been incorporated in numerous aspects of civil

and criminal law. Indeed, the Amici respectfully

submit that the open legal question before this Court

in not whether a President should be afforded

immunity, but rather what scope of immunity a

President is afforded when acting in his official

capacity.

“Immunities come in various shapes and sizes.”

Goldstein v. Galvin, 719 F.3d 16, 24 (1st Cir. 2013). As

this Court has explained, the defense of absolute

immunity bars suit against “officials whose special

functions or constitutional status requires complete

protection from suit.” Harlow v. Fitzgerald, 457 U.S.

800, 807, 102 S.Ct. 2727 (1982) (citing Butz v.

Economou, 438 U.S. 478, 508-12, 98 S.Ct. 2894 (1978)

(granting absolute immunity to executive officers

engaged in adjudicative functions); Stump v.

Sparkman, 435 U.S. 349, 98 S.Ct. 1099 (1978)

(recognizing absolute immunity to judges for judicial

functions); Eastland v. U.S. Servicemen’s Fund, 421

U.S. 491, 95 S.Ct. 1813 (1975) (according absolute

immunity to legislators for legislative functions)). As

the Court has recognized, the purpose of absolute

immunity “is not to protect an erring official, but to

insulate the decision-making process from the

harassment of prospective litigation.” Westfall v.

Erwin, 484 U.S. 292, 295, 108 S.Ct. 580 (1988).

It has long been established, for example, that

absolute immunity applies even when an official is

“accused of acting maliciously and corruptly” in

exercising their judicial or prosecutorial functions.

Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213 (1967)

(emphasis added). Absolute immunity likewise

endures “in the presence of ‘grave procedural errors.’”

Nystedt v. Nigro, 700 F.3d 25, 32 (1st Cir. 2012)

(quoting Stump v. Sparkman, 435 U.S. 349, 359, 98

S.Ct. 1099 (1978)). The imperviousness of this

protection is no accident: “[a]lthough this concept of

absolute immunity allows some abuses of official

power to go unredressed, it is necessary for the

effective administration of government that

government workers be able to perform their jobs

without fear of liability.” Ricci v. Key Bancshares of

Me., Inc., 768 F.2d 456, 462 (1st Cir. 1985). “If a public

official’s action is protected by absolute immunity, the

doctrine provides that the public official with complete

and total immunity from suit, irrespective of how

egregious or unlawful the action may have been.”

Churchill v. Univ. of Colo. at Boulder, 285 P.3d 986,

1000 (Colo. 2012) (en banc) (citing Tobin for Governor

v. Ill. State Bd. Of Elections, 268 F.3d 517, 524 (7th

Cir. 2001)).

Absolute immunity defeats a suit at the outset, so

long as the official’s actions were within the scope of

the immunity. See, e.g., Sample v. City of Woodbury,

836 F.3d 913 (8th Cir. 2016); Larson v. State, 254 P.3d

1073 (Alaska 2011); Marvin v. Fitch, 232 P.3d 425

(Nev. 2010); Witzke v. City of Bismarck, 718 N.W.2d

586 (N.D. 2006); O’Connor v. Donovan, 48 A.3d 584

(Vt. 2012). But least one Circuit has held that the

scope of the immunity does not end at the boundaries

of an official’s authority. See, e.g., Tobin, 268 F.3d at

524 (even if lawsuit is meritorious, “it cannot pierce

the shield of absolute immunity because judicial

officers are entitled to that immunity even when they

act in error, maliciously, or in excess of their

authority.”) (emphasis added).

Like qualified immunity, absolute immunity is a

broad grant of immunity—not just from an award of

damages, but from the burdens of litigation, generally.

Harrison v. Roitman, 362 P.3d 1138 (Nev. 2015).

Absolute immunity affords government officials, and

those delegated governmental power, the ability to

exercise their official powers without fear that their

discretionary decisions may engender endless

litigation. City of Providence, Rhode Island v. Bats

Global Markets, Inc., 878 F.3d 36 (2d Cir. 2017).

Accordingly, it operates as a bar to a lawsuit, rather

than as a mere defense against liability, and is

effectively lost if a case is erroneously permitted to go

to trial. Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769

(2007); Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct.

2806 (1985).

When absolute immunity applies, the claims

should be dismissed without inquiry into the official’s

motives. Powercorp Alaska, LLC v. Alaska Energy

Auth., 290 P.3d 1173, 1184 (Alaska 2013). Officials

who have absolute immunity never have to justify

their actions in court, because they are spared the

costs that litigation entails. Brooks v. Clark County,

828 F.3d 910, 916 (9th Cir. 2016). Because absolute

immunity includes the right to avoid trial, review after

final judgment does not suffice. Mandel v. O’Hara, 576

A.2d 766, 781 (Md. 1990).

This Court has been sparing in granting absolute

immunity but has recognized that “there are some

officials whose special functions require a full

exemption from liability.” Butz v. Economou, 438 U.S.

478, 508, 98 S.Ct. 2894 (1978). Absolute immunity has

been applied to various public officials, including

“judges performing judicial acts within their

jurisdiction,” “prosecutors performing acts intimately

associated with the judicial phase of the criminal

process,” and quasi-judicial officials with functions

similar to judges or prosecutors. Bettencourt v. Bd. of

Regist. in Med. of Mass., 904 F.2d 772, 782 (1st Cir.

1990) (internal quotation marks omitted). Other

examples of absolute immunity include that immunity

afforded to witnesses in a jury trial or during grand

jury testimony, even in the face of allegations of

witnesses conspiring to present false testimony. See

Rehberg v. Paulk, 566 U.S. 356, 369, 132 S. Ct. 1497

(2012).

In addition, this Court has long held that

“legislative immunity is an analogue to the Speech

and Debate Clause of the federal Constitution that

reflects the importance that Anglo-American law

traditionally has placed on protecting ‘legislators

acting within their traditional sphere’ from being

subject to suit.” Cushing v. Packard, 30 F.4th 27, 36

(1st Cir. 2022) (quoting Tenney v. Brandhove, 341 U.S.

367, 376, 71 S.Ct. 783 (1951)). “This ‘privilege’ from

suit is ‘indispensabl[e]’ to ‘enable and encourage a

representative of the public to discharge his public

trust with firmness and success.’” Id. This Court has

noted: “Legislators are immune from deterrents to the

uninhibited discharge of their legislative duty not for

their private indulgence but for the public good.” Lake

Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440

U.S. 391, 405, 99 S.Ct. 1171 (1979). Equally important

is the privilege’s function to guard against “judicial

interference” by protecting legislators from courts’

seeking to “inquire into the motives of legislators” and

“uncover a legislator’s subjective intent in drafting,

supporting, or opposing proposed or enacted

legislation.” La Union del Pueblo Entero v. Abbott, 93

F.4th 310, 317 (5th Cir. 2024).

When making a determination regarding absolute

immunity, the inquiry is “the nature of the function

performed, not the identity of the actor who performed

it.” Roberts v. Lau, 90 F.4th 618, 620 (3d Cir. 2024).

First, courts “ascertain just what conduct forms the

basis for the plaintiff’s cause of action”; then, they

“determine

what

function

(prosecutorial,

administrative, investigative, or something else

entirely) that act served.” Id. at 625. To prevail at the

motion-to-dismiss stage, the official must show that

the conduct triggering the immunity “clearly appears

on the face of the complaint.” Id. Again, the immunity

determination “is based on the function being

fulfilled—not the title of the actor claiming

immunity.” McCray v. Md. Dep’t of Transp., Md.

Transit Admin., 741 F.3d 480, 485 (4th Cir. 2014).

Under the functional test for determining the

applicability of absolute legislative immunity,

“whether immunity attaches turns not on the official’s

identity, or even on the official’s motive or intent, but

on the nature of the act in question. In particular,

absolute legislative immunity attaches to all actions

taken in the sphere of legitimate legislative activity.”

State Emps. Bargaining Agent Coal. v. Rowland, 494

F.3d 71 (2d Cir. 2007) (internal citations omitted). “[I]t

is the general nature of the act that is determinative

of the issue of immunity.” Cameron v. Seitz, 38 F.3d

264, 272 (6th Cir. 1994) (despite unprofessional,

immature, and retaliatory nature, decisions about

pending cases, courtroom decorum, and monitoring of

juvenile services department were judicial).

Thus, under these rubrics, the crux of the legal

question is not whether a President should be afforded

absolute immunity, but rather whether the former

President, or any protected actor, was performing

duties that fall within their scope of responsibilities.

B. Presidential Immunity

This Court should extend the doctrine of absolute

immunity to the Office of the President to include not

only civil matters, but criminal matters as well. Given

the range of lower officials who enjoy absolute

immunity, it is difficult to imagine that the highest

office in the land would not require the same

protections. This is consistent with this Court’s prior

decisions in the civil context.

In Nixon v. Fitzgerald, former President Richard

Nixon was named in a lawsuit, brought by a former

Department of the Air Force analyst, against various

Defense Department officials and White House aides

who were allegedly responsible for the analyst’s

dismissal. Nixon v. Fitzgerald, 457 U.S. 731, 731, 102

S. Ct. 2690, 2691 (1982). Former President Nixon

asserted Presidential immunity as a complete defense.

The Court ruled that he, as a former President of the

United States, was entitled to absolute immunity from

damages liability predicated on his official acts. Nixon,

457 U.S. at 732. Although there is no blanket

recognition of absolute immunity for all federal

executive officials from liability for civil damages

resulting from constitutional violations, certain

officials require absolute exemption from liability

because of the special nature of their responsibilities.

Determination of the immunity of particular officials

is guided by the Constitution, federal statutes, history,

and public policy. Nixon, 457 U.S. at 732-33. This

Court, in reaching its findings, argued:

The President’s absolute immunity is a

functionally mandated incident of his unique

office, rooted in the constitutional tradition of

the separation of powers and supported by the

Nation’s history. Because of the singular

importance of the President’s duties, diversion

of his energies by concern with private lawsuits

would raise unique risks to the effective

functioning of government. While the

separation-of-powers doctrine does not bar

every exercise of jurisdiction over the

President,

court,

before

exercising

jurisdiction, must balance the constitutional

weight of the interest to be served against the

dangers of intrusion on the authority and

functions of the Executive Branch. The exercise

of jurisdiction is not warranted in the case of

merely private suits for damages based on a

President’s official acts.

Id. The Court went on to find:

The President’s absolute immunity extends to

all acts within the ‘outer perimeter’ of his

duties of office, and that a rule of absolute

immunity for the President does not leave the

Nation without sufficient protection against his

misconduct. There remains the constitutional

remedy of impeachment, as well as the

deterrent effects of constant scrutiny by the

press and vigilant oversight by Congress. Other

incentives to avoid misconduct may include a

desire to earn reelection, the need to maintain

prestige as an element of Presidential

influence, and a President’s traditional concern

for his historical stature.

Id. (emphasis added). The reasoning of the Nixon

Court is directly applicable to the case at hand.

“Under the Constitution and laws of the United

States the President has discretionary responsibilities

in a broad variety of areas, many of them highly

sensitive. In many cases it would be difficult to

determine which of the President’s innumerable

‘functions’ encompassed a particular action.” Nixon,

457 U.S. at 756. Indeed, the job of the Presidency has

only gotten more complex, with an ever-increasing

number of discretionary responsibilities. Further, as

the Nixon Court noted:

Courts traditionally have recognized the

President’s constitutional responsibilities and

status as factors counseling judicial deference

and restraint. For example, while courts

generally have looked to the common law to

determine the scope of an official’s evidentiary

privilege, we have recognized that the

Presidential privilege is ‘rooted in the

separation of powers under the Constitution.’

United States v. Nixon, 418 U.S. 683, 708, 94 S.Ct.

3090, 3107 (1974). It is settled law that the separationof-powers doctrine does not bar every exercise of

jurisdiction over the President. See, e.g., United States

v. Nixon, supra; United States v. Burr, 25 F.Cas. 187,

191, 196 (No.14,694) (CC Va.1807); cf. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863

(1952). But this Court’s cases also have established

that “a court, before exercising jurisdiction, must

balance the constitutional weight of the interest to be

served against the dangers of intrusion on the

authority and functions of the Executive Branch.”

Nixon, 457 U.S. at 754.

In this instance, this Court should adhere to the

principles articulated in Nixon and extend the

principle of absolute immunity to include criminal

cases. Such an extension would only serve to further

the public interest and ensure the Office of the

President is able to operate without fear of reprisal—

all while still imposing the same checks and balances

that are present in other cases of absolute immunity.

As is the case in any legal proceeding where absolute

immunity is asserted, the Court is charged with

“defining the scope of an official’s absolute privilege.”

Id. at 755. That charge is to ensure that “the sphere of

protected action must be related closely to the

immunity’s justifying purposes.” Id. This Court has

held “that an official’s absolute immunity should

extend only to acts in performance of particular

functions of his office.” Id. (internal citations omitted).

On the other hand, this Court has “refused to draw

functional lines finer than history and reason would

support.” Id. at 755-56 (citing Spalding v. Vilas, 161

U.S. 483, 498, 16 S.Ct. 631, 637 (1896) (privilege

extends to all matters “committed by law to [an

official’s] control or supervision”); Barr v. Matteo, 360

U.S. 564, 575, 79 S.Ct. 1335, 1341 (1959) (fact “that

the action here taken was within the outer perimeter

of petitioner’s line of duty is enough to render the

privilege applicable”); Stump v. Sparkman, 435 U.S.,

at 363 & n.12, 98 S.Ct., at 1108 & n.12 (judicial

privilege applies even to acts occurring outside “the

normal attributes of a judicial proceeding”)).

The reasoning in Nixon is certainly applicable in

the criminal context, as well as civil:

Because of the singular importance of the

President’s duties, diversion of his energies by

concern with private lawsuits would raise

unique risks to the effective functioning of

government. As is the case with prosecutors

and judges for whom absolute immunity now is

established—a President must concern himself

with matters likely to ‘arouse the most intense

feelings.’ Yet, as our decisions have recognized,

it is in precisely such cases that there exists the

greatest public interest in providing an official

‘the maximum ability to deal fearlessly and

impartially with’ the duties of his office. This

concern is compelling where the officeholder

must make the most sensitive and far-reaching

decisions entrusted to any official under our

constitutional system. Nor can the sheer

prominence of the President’s office be ignored.

In view of the visibility of his office and the

effect of his actions on countless people, the

President would be an easily identifiable target

for suits for civil damages. Cognizance of this

personal vulnerability frequently could distract

a President from his public duties, to the

detriment of not only the President and his

office but also the Nation that the Presidency

was designed to serve.

Nixon, 457 U.S. at 751-53 (internal citations omitted).

The same considerations that arise in a suit for civil

damages against the President are present in the

criminal context. To allow for the prosecution of a

President for acting in his official capacity would have

a chilling effect on the Presidency. Such an outcome

could ultimately result in President’s decision-making

process being compromised for fear of reprisal or, in

certain instances, could lead to a delay in a President

taking decisive action, causing significant negative

impacts to the health and wellbeing of the country of

its citizens. Indeed, a President must have confidence

that any decision made within the confines of his

office, right or wrong, will not result in an adverse

outcome simply because a group of individuals

disagrees with the action taken.

Arguably, this concern is supported by current

Department of Justice policy, which states sitting U.S.

Presidents should not be criminally prosecuted. “In

1973, the Department concluded that the indictment

or criminal prosecution of a sitting President would

impermissibly undermine the capacity of the

executive branch to perform its constitutionally

assigned functions. The Department’s consideration of

this issue in 1973 arose in two distinct legal contexts.

First, the Office of Legal Counsel (“OLC”) prepared a

comprehensive memorandum in the fall of 1973 that

analyzed whether all federal civil officers are immune

from indictment or criminal prosecution while in

office, and, if not, whether the President and Vice

President in particular are immune from indictment

or criminal prosecution while in office. See

Memorandum from Robert G. Dixon, Jr., Assistant

Attorney General, Office of Legal Counsel, Re:

Amenability of the President, Vice President and

other Civil Officers to Federal Criminal Prosecution

while in Office (Sept. 24, 1973) (“OLC Memo”). The

OLC memorandum concluded that all federal civil

officers except the President are subject to indictment

and criminal prosecution while still in office; the

President is uniquely immune from such process. A

Sitting President’s Amenability to Indictment & Crim.

Prosecution, 24 U.S. Op. Off. Legal Counsel 222

(2000).

Both the 1973 memorandum and the 2000

memorandum support the Amici’s contention that

criminal prosecution of a President, whether sitting or

retired, should not be pursued except in the narrowest

of circumstances. Further, if prosecution is pursued, it

must be done only after a finding that the actions for

which the President is being charged were conducted

outside the official scope of the Presidents duties.

As noted in both case law and by the United States

Attorney General, the prosecution of a President

raises numerous significant constitutional, political,

and policy concerns. Any approach should be done in

a thoughtful and restrained manner.

II. The Trial Court Made Insufficient Findings

To Apply The Law

As the cases above demonstrate, absolute

immunity is not a novel concept in this county—nor is

Presidential immunity. But, as described above, the

applicability of these immunities depends, inter alia,

on whether the official is acting within the scope of

their office. Thus, here, whether President Trump is

entitled to immunity for his actions on January 6,

2021 would depend on whether he was acting within

the duties of his office while performing each of the

acts for which he is being charged.

Unfortunately, it does not appear that the trial

court conducted this analysis. Instead, it appears that

the trial court only analyzed whether Presidential

immunity exists at all, but failed to analyze whether

the specific acts underlying the pending criminal

action were within the scope of the President’s duties.

See generally United States v. Trump, No. 23-CR-257,

Slip. Op. at 6-31 (D.D.C. Dec. 1, 2023). Without this

analysis by the trial court, the appellate record is

insufficient to allow this Court to review this analysis.

The Amici, therefore, urge this Court to overturn

the lower decisions and return the matter to the trial

court to determine, separately for each act for which

he is being charged, whether President Trump was

acting within his duties as President of the United

States when he undertook such act.

CONCLUSION

The Amici respectfully urge this Court to find that

President Trump was entitled to Presidential

immunity shielding his actions while he was acting

with the scope of his duties. The Amici further

respectfully request that this Court return the matter

to the trial court for further factual findings.

Respectfully submitted,