As they seek to quell a revolt in their base over the Jeffrey Epstein files, President Donald Trump and Director of National Intelligence Tulsi Gabbard have offered MAGA voters some tantalizing alternate programming: The prospect of charging Barack Obama with orchestrating a treasonous plot to undermine Trump’s first presidency.
The biggest problem with that is the sheer lack of evidence of any wrongdoing by Obama and other former officials. But even if the Trump administration produced a smoking gun, they’d have to contend with the issue of immunity for former presidents.
Backing up a second, the idea Gabbard has promoted is that Obama pushed for manufactured intelligence about Russia’s interference in the 2016 election to undercut Trump before he took office. The whole thing rests on a series of conflations and misleading claims.
And the biggest findings in that intelligence have been affirmed over and over again, including by Republicans and including by Trump’s now-Secretary of State Marco Rubio in a major 2020 Senate report. If people who said this stuff engaged in a coup, wasn’t Rubio also complicit?
But again, even if we set all that aside, there’s the problem that Obama might well be immune from any such prosecution — thanks in no small part to Trump himself.
Trump and Co. spent much of 2024 arguing that presidents should be immune from virtually any criminal charges. And they succeeded in large enough part at the Supreme Court that it seems unlikely their allegations — even if merited — could result in criminal prosecution for Obama.
Despite Trump’s and Gabbard’s suggestions that Obama could be charged, Trump’s own lawyers argued that such threats of prosecution were unthinkable because they would so hamstring a president.
“Without presidential immunity from criminal prosecution, there can be no presidency as we know it,” D. John Sauer, then Trump’s personal lawyer and now his solicitor general, told the Supreme Court.
Sauer even left open the idea that a president could order his political opponents to be assassinated and not face charges, because that act would be an official act of the president.
The Supreme Court didn’t go quite that far, but it did give the presidency a broad new grant of immunity.
So would that immunity apply to Obama?
The Supreme Court said actions taken under a president’s core executive powers are immune. Beyond that, a president has the presumption of immunity for any actions that are “within the outer perimeter of his official responsibility” — that is, actions that are “not manifestly or palpably beyond [his] authority.”
That’s just the presumption, not actual immunity. But Chief Justice John G. Roberts Jr. in the opinion set a high bar for when immunity wouldn’t apply. He said that, at a minimum, the president’s “outer perimeter” official acts must be immune unless the government proving its case “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”
Precisely what all this means has been the subject of plenty of debate. It wasn’t clear what it meant for Trump’s Jan. 6-related prosecutions, which were the impetus for the ruling. Prosecutors and judges scrambled to reckon with what evidence and charges remained valid, but the cases never reached trial after Trump was elected.
“Assuming this nonsense is true, if Obama were acting in his official capacity in merely communicating with his intelligence folks about Russian interference, clear immunity,” Harvard University law professor Richard Lazarus said. “But if the allegation is that Obama was stepping outside that role and acting in his personal capacity to help Clinton’s campaign, then not so clear.”
Still, it would be easier for Obama to argue that the actions in question were part of his official duties than it was for Trump to assert his efforts to overturn election results were presidential acts. Elections are largely conducted by the states and the president doesn’t have a defined role.
In Obama’s case, the basis of Trump’s and Gabbard’s allegations is that he was participating in manufacturing intelligence reports. But would asking for intelligence not be part of his core (and theoretically immune) powers? And even if it’s somehow not, wouldn’t it be in the “outer perimeter” of his official duties, where the bar for getting past immunity is higher?
“Communicating with intelligence officials would seem to fall into the scope of official duties,” UCLA law professor Rick Hasen said.
Hasen also noted that any theoretical charges would have to overcome a major problem stemming from the Supreme Court’s decision in Trump v. United States: They couldn’t use official acts as evidence to prove the crime.
White House press secretary Karoline Leavitt was asked repeatedly about this Wednesday at a briefing, and she punted multiple times on whether immunity applied to Obama.
“I’ll leave that to the Department of Justice,” Leavitt eventually said.
All of this might seem academic. It still seems a distant possibility that Trump and his Justice Department would ever press forward with trying to prosecute Obama. Trump makes these claims a lot and they tend to fall away. Judging by how his media allies are covering the Obama allegations much more than the saga over the Jeffrey Epstein files, it would seem this served as a temporary distraction.
But it’s also just so discordant. Trump and his lawyers argued that presidents had to be fully immune because it was absolutely essential to the executive job. Then he turns around and, just more than a year later, suggests those standards shouldn’t be applied to his predecessor for actions that appear much more official than Trump’s own.
By the logic of Trump’s lawyers, Obama in 2016 could have done much more than just massage intelligence reports; he could have put out a hit on Trump, and still possibly have been immune.
It’s almost like Trump’s view was always: Immunity for me, not for thee.
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