Nov. 17, Anthony Colangelo, Professor of Law at the SMU Dallas Dedman School of Law, for a piece explaining why President Trump’s behavior on Jan. 6 disqualifies him from any immunity during congressional proceedings. Published in the Austin American-Statesman under the heading Trump’s behavior disqualifies him from any privilege: https://bit.ly/3cnTkrg
Donald Trump is trying to use the doctrine of what’s called “executive privilege” to stonewall congressional investigation into the January 6 riots at the U.S. Capitol. According to the former president, he can shield evidence based on his status as a former president. Congress, of course, disagrees. And this disagreement has now sparked a heated debate in the courts about the scope and contours of the privilege.
By Anthony Colangelo
Donald Trump is trying to use the doctrine of what’s called “executive privilege” to stonewall congressional investigation into the January 6 riots at the U.S. Capitol. According to the former president, he can shield evidence based on his status as a former president. Congress, of course, disagrees. And this disagreement has now sparked a heated debate in the courts about the scope and contours of the privilege.
One area courts may look to in drawing the parameters of executive privilege is the related doctrine of sovereign immunity. This doctrine goes hand in hand with privilege in that it protects the president from suit. Yet the law here is also fuzzy — like executive privilege, it appears nowhere in the Constitution; rather, it was invented by judges. The reasoning behind the doctrine is to allow the president to fulfill his duties without the distraction of suit and to avoid chilling future actions. But the doctrine extends only to “official action” — a category that is now the subject of intense dispute.
It turns out there is another body of law that has a robust and helpful doctrine of immunity that may be of use in discerning the contours of executive privilege. International law has developed various types of immunity since its modern birth dating back to the Peace of Westphalia in 1648. In doing so, it specifically grappled with the same balance of providing leaders with protection against suit and liberty to act in the moment on the one hand, and justice on the other. Moreover, it is not unusual for courts to look to international law for rules of decision. Indeed, our whole federal system was designed by borrowing the concept of territorial sovereignty from the more developed international law and applying it to the several states.
Here is another opportunity. The international law relating to individual immunity comes in two main flavors: status-based immunity and conduct-based immunity.
Status-based immunity protects high ranking officials against suits alleging illegal conduct while the officeholder is in office, but — importantly—the immunity lapses once the official leaves office. Conduct-based immunity, by contrast, is both narrower and broader than status-based immunity. It is narrower in that it attaches only to official acts, and it is broader in that it endures after the official leaves office.
It is a species of this form of immunity that Trump seems to be channeling. And here, international law has something to say after 373 years of experience, for conduct-based immunity does not attach to serious crimes under international law.
The pivotal question is then, like domestic law, whether the conduct in question amounts to a serious offense. If it does, immunity is stripped.
Because there is no question that goading on a crowd and then remaining silent while riotous supporters break into the Capitol building and threaten the very heart of our democracy is a serious offense, Trump should not enjoy immunity for that provocation and silence.
Anthony Colangelo is the Robert G. Storey Distinguished Faculty Fellow and professor of law at the SMU Dallas Dedman School of Law.