Republican attorneys general suggest a test for Supreme Court to measure presidential immunity – Washington Examiner

Three Republican attorneys general filed an amicus brief in former President Donald Trump’s immunity appeal, asking the U.S. Supreme Court to establish a test for presidential immunity.

Ohio Attorney General Dave Yost filed the brief in Donald J. Trump v. United States of America, which was also signed by Wyoming Attorney General Bridget Hill and Alaska Attorney General Treg Taylor. In the brief, they asked the high court to define the boundaries of presidential immunity and take a broad approach to it when the justices hear Trump’s oral arguments on April 25.

“A line of normal behavior has been crossed — the special counsel actually boasts in his own brief that a president has never before been criminally prosecuted,” Yost said in a press release. “In the same way that impeachment has apparently been normalized, it seems likely that we will see future cases in which a prosecutor charges a chief magistrate.”

The first-of-its-kind case could set a precedent going forward that brings criminal charges to any current or former president. Therefore, the attorneys general argue, the justices should establish a two-factor legal test that could be applied to cases regarding presidential immunity.

“Announcing a test now, before all the facts are aired, not only aids the trial process, but may well ‘turn the national temperature down,’” Yost wrote in the brief.

The first part of the test would assess how closely an alleged criminal action is connected to powers granted to the president under Article II of the Constitution, while the second part asks the court to examine whether the “urgency of the situation warranted the president’s actions.” During times of war or necessity, the president should be granted a “greater degree of immunity,” according to the brief.


While the attorneys general asked the court to adopt the two-factor test to measure presidential immunity, they did not specify how the justices should rule, just that the test should be applied to the case’s facts.

Last month, a federal appeals court in Washington ruled that Trump could not claim presidential immunity over his alleged attempt to overturn the 2020 election. The former president’s legal team filed a brief ahead of April’s oral arguments claiming that presidents are immune from criminal prosecution for official acts made during their presidency once they are no longer in office. In that brief, Trump said that if the Supreme Court ruled against him, it would “incapacitate every future president.”