As President Donald Trump and Director of National Intelligence Tulsi Gabbard seek to pacify their base over the Jeffrey Epstein files, they propose the idea of charging former President Barack Obama with treason for allegedly undermining Trump’s first presidency.
The suggestion by Trump and Gabbard involves allegations that Obama orchestrated false intelligence regarding Russian interference in the 2016 election to weaken Trump before assuming office. Despite the audacious claim, the primary challenge is the lack of evidence against Obama or other officials. Furthermore, even substantial evidence might clash with legal immunity afforded to former presidents.
Gabbard’s narrative suggests Obama engineered intelligence about Russian interference during the 2016 election to damage Trump. However, such claims are based on dubious interpretations and misleading information. Moreover, significant intelligence findings have been repeatedly validated, even by Republicans like Trump’s Secretary of State Marco Rubio in a crucial 2020 Senate report.
Besides evidentiary challenges, there’s the issue of whether Obama would be immune from prosecution—a situation paradoxically shaped by Trump himself. In 2024, Trump championed the notion that presidents should have extensive immunity from criminal charges, a stance upheld by the Supreme Court, potentially shielding Obama from any prosecution attempt.
Despite suggestions from Trump and Gabbard that Obama could face charges, Trump’s own legal team had previously argued against such actions, emphasizing the vital need for presidential immunity. Trump’s former personal lawyer, D. John Sauer, told the Supreme Court that without immunity from criminal prosecution, the presidency would be incapacitated.
Sauer went as far as positing that a president could make extreme decisions, like ordering the assassination of political opponents, without facing charges since such actions would fall under official presidential duties.
While the Supreme Court didn’t endorse this extreme interpretation, it did reinforce presidential immunity. This raises the question of whether such immunity would apply to Obama.
The Court concluded actions taken under a president’s core executive powers are immune. Furthermore, presidents possess presumed immunity for acts within their official responsibilities, which are not patently beyond their authority. However, Chief Justice John G. Roberts Jr. established a high threshold for instances in which immunity wouldn’t apply.
The ruling’s implications are still debated, especially concerning Trump’s alleged actions related to the January 6 Capitol riot. Although these cases never reached trial after Trump’s election, prosecutors and judges continue to reassess valid evidence and charges.
Harvard law professor Richard Lazarus noted, “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.” But if Obama’s actions were personal, aiming to support Clinton’s campaign, immunity might not be so apparent.
Comparatively, it would be simpler for Obama to argue that the actions in question encompassed official duties, unlike Trump’s attempts to contest election results, which fall outside a president’s established role, typically managed by states.
In the eyes of Trump’s and Gabbard’s accusations, Obama was involved in creating intelligence reports. However, seeking intelligence falls under a president’s core responsibilities. Even if not, such actions remain within the “outer perimeter” of official duties, where overcoming immunity is challenging.
UCLA law professor Rick Hasen noted “Communicating with intelligence officials would seem to fall into the scope of official duties.” Yet, theoretical charges would face a major hurdle due to the Supreme Court’s decision in Trump v. United States, precluding the use of official acts as criminal evidence.
White House press secretary Karoline Leavitt, during a press briefing, repeatedly deferred on whether immunity applied to Obama. “I’ll leave that to the Department of Justice,” she remarked.
Overall, while the situation appears academic, it remains highly speculative that Trump and his Justice Department would pursue prosecuting Obama. Historically, Trump’s claims often dissipate. However, media coverage, more focused on Obama allegations than the Epstein files, indicates a potential temporary diversion strategy.
This juxtaposition is striking. Trump’s legal position argued for comprehensive presidential immunity as essential for executive functions. Yet, he suggests abandoning those standards for his predecessor’s more official-seeming actions.
According to Trump’s legal rationale, Obama could arguably have taken far more drastic actions than adjusting intelligence reports, potentially without consequence.
Source: Original article