ACLU Brief Urges Supreme Court to Reject Trump Immunity Claims

WASHINGTON — The American Civil Liberties Union and ACLU of the District of Columbia filed a friend-of-the-court brief today in the Supreme Court in Trump v. United States, arguing that former President Trump is not immune from criminal prosecution, and that the U.S. Constitution and decades of Supreme Court precedent support the principle that nobody is above the law — even the president.

In Trump v. United States, former President Trump is asking the Supreme Court to rule that he cannot be held criminally liable for any official acts as president, even after leaving office. But the ACLU’s amicus brief explains that this view is unsupported by the text and history of the Constitution, and contrary to the separation of powers.

“Allowing former presidents to skirt accountability for criminal acts would effectively place them above the law. That result would embolden authoritarians and encourage corruption at the highest levels of government,” said ACLU National Legal Director David Cole. “The United States does not have a king, and former presidents have no claim to being above the law. A functioning democracy depends on our ability to critically reckon with the troubling actions of government officials and hold them accountable.”

The brief argues that presidents have long recognized that while presidents cannot be prosecuted criminally while in office, they can be prosecuted after leaving office. That is why President Gerald Ford deemed it necessary to pardon President Richard Nixon in 1974 following the Watergate scandal – a pardon that would have been unnecessary were Nixon immune from criminal prosecution.

Trump himself, while in office, twice took the position that he could be prosecuted criminally after leaving office. But now that he actually faces those charges, he has reversed his prior position. No other president has asserted that presidents can never be prosecuted for official acts that violate criminal law.

“Few principles are more dangerous to our freedoms and rights than Donald Trump’s view that the highest office in our government is the least accountable,” said Scott Michelman, Legal Director, ACLU of the District of Columbia. “Public accountability is essential to maintain our democracy. We urge the Supreme Court to reject the frightening assertion that presidents are above the law.”

The brief warns that there are “few propositions more dangerous” in a democracy than the notion that an elected head of state is above the law, and urges the Supreme Court to reject this extraordinary assertion.

“The President’s accountability to the law is an integral part of the separation of powers and the rule of law. If the President is free, as counsel for the former President argued below, to order the assassination of his political opponents and escape all criminal accountability even after he leaves office, both of these fundamental principles of our system would have a fatal Achilles’ heel,” the brief reads.

The ACLU’s brief in Trump v. United States is part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.