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Amicus Urges Supreme Court to Reject Trump’s Immunity Claims

April 25, 2024

Claire Finkelstein
Claire Finkelstein

Prof. Claire Finkelstein, along with 14 national security and military experts, has filed an amicus brief in Trump v. United States.

Claire Finkelstein, Algernon Biddle Professor of Law at the University of Pennsylvania Carey Law School, has filed an amicus brief along with 14 national security professionals arguing against former President Donald J. Trump’s claim that he is immune to all criminal charges, even after leaving office.

Trump “asks this Court to embrace a theory of presidential authority, according to which no prosecutor or court can hold a former president accountable for either private or official capacity crimes committed while he is in office, and he claims this blanket immunity should endure permanently, including after a president has left office,” the amici write. This “broad view of immunity,” they continue, “would imperil U.S. national security, weaken the authority of the President, and throw confusion into the chain of command of the armed forces, which the President, as Commander-in-Chief, commands.”

An expert in the law of armed conflict, military ethics, national security law, and professional ethics, Finkelstein is the founder and faculty director of the Center for Ethics and the Rule of Law (CERL), a non-partisan interdisciplinary institute affiliated with the University of Pennsylvania’s Annenberg Public Policy Center (APPC). She is a Professor of Philosophy at Penn, a distinguished research fellow at APPC, and a senior fellow at the Foreign Policy Research Institute (FPRI).

Finkelstein and co-authors maintain that the principle that “no person is above the law” is the bedrock of U.S. national security. Although the Supreme Court has adopted an attitude of deference toward the executive branch in matters of war powers, they write, when that authority is turned “inward” toward domestic ends, the federal courts have rejected the legality of presidential action.

From the brief:

Of particular concern is the potential adverse impact of presidential immunity on the principle of military obedience to civil authority, the foundation for our civil-military relations since the inception of the Republic. Allowing a president to issue orders requiring subordinates to commit criminal acts or omissions would wreak havoc on the military chain of command and result in an erosion of confidence in the legality of presidential orders. It would also create the potential for disparate interpretations of the duty to obey orders, thereby risking military discipline. While the duty of obedience does not extend to patently illegal orders, an order issued by the President himself would exert a powerful gravitational pull and thus even if of dubious legality would create uncertainty in the ranks. Holding everyone in the chain of command, including the President, to the same principles of accountability under the criminal laws of the United States is essential for assuring the legality of military orders and for providing the reassurance for all levels of the chain of command of that legality.

The brief’s authors also argue against qualified immunity, writing, “Any form of immunity doctrine is both unnecessary to protect the interests of the presidency and ultimately dangerous for U.S. national security.”

This “second choice” alternative to absolute immunity seeks to place the president above ordinary citizens with regard to “generally applicable” criminal law, they write. Moreover, the authors contend, claims of qualified immunity are already addressed by traditional limitations on criminal liability. “[T]here is no credible justification to support [Trump’s] argument that a different and higher level of clarity as to a federal criminal statute must be required when the law is applied to the president than when the same law is enforced by the Department of Justice against an ordinary citizen.”

The amici urge the Court to reject the claims of both absolute and qualified immunity theories, as either would be “exceedingly dangerous for both our constitutional framework and for U.S. national security.”

Read the full amicus brief.