Donald Trump has been talking a lot of late about immunity.
“I’m immune,” he told Maria Bartiromo on Fox News six days after his release from the Walter Reed National Military Medical Center, where he had received treatment after falling ill with the coronavirus. “The president,” the president added, “is in very good shape to fight the battles.”
“I’m immune,” he said the next day at a rally in Florida, his first time back on the campaign trail. And the day after that at a rally in Pennsylvania. And the day after that in Iowa. And three days after that in Wisconsin.
Trump is talking most literally about his recovery from Covid. It’s a ready way for him to boast about his vigor and virility. He is, after all, a 74-year-old man who reportedly contemplated ripping off his dress shirt to reveal a Superman top upon his exit from the hospital.
“I’m totally free. Right? Not only am I free, I’m immune,” he told reporters on Monday in Phoenix. “Now, the question is, are you immune for four months or for the rest of your life?”
Trump’s brought this up—how long this defense will last—on Fox and on Newsmax and during rallies and in a radio interview and on a podcast. And it is this particular fixation that reveals his deeper anxiety, according to former associates, biographers, attorneys, professors of law and other experts. It’s an unease that goes far beyond his prospect of re-infection. Because what he’s really talking about, they say, is immunity of an even more expansive and pressing variety—the kind he will need if he loses on November 3, if he is expelled from the protective bubble the presidency provides, if he is forced to return to civilian life, where he likely will face legal jeopardy from active civil suits and criminal investigations.
“It’s hard to know if he’s talking about the virus or prosecution—talking to his immediate audience or to the DOJ, talking to himself or to multiple audiences,” Jen Mercieca, a Texas A&M professor of communication and the author of a book about Trump’s rhetoric, told me. “That we can’t tell says a lot about Trump’s sophisticated use of irony, his fear of the virus, the state of the presidential race, and his fear of prosecution should he leave office.”
Trump, whether it’s wishful thinking, longing or projection, is reckoning with the durability of his lifelong belief in his own immunity from consequence. It’s how he’s always seen himself, and it’s how he’s wanted to be seen by the world. “He thinks he’s immune to everything,” the biographer Tim O’Brien told me. “He always did,” said Barbara Res, a former Trump Organization vice president who worked for Trump in the 1970s, ’80s and ’90s and has a new book out called Tower of Lies.
The presidency has afforded Trump a feeling of inviolability, and he has sought to expand the privileges of the office beyond their already vast scope, claiming for himself a kind of immunity so legally unsubstantiated even his own Supreme Court nominees have had to rein him in. But Trump’s view of himself as untouchable is in some ways just an extension and escalation of a mindset he learned from the two most important mentors in his life—Fred Trump, his dour, domineering father, and Roy Cohn, the notorious attorney and amoral political fixer. But the issue that now looms is whether or not he can remain as immune as he’s been for the past nearly four years. Because if the office of the presidency has granted him an unusual level of immunity, it has made him the ultimate target, too.
“I think he thinks of himself as the Teflon man—that no one can touch him, that he has absolutely no accountability,” Jim Zirin, a former prosecutor for the Southern District of New York and the author of Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuits, told me. “He’s cloaked himself in that. And the Trump name, the Trump brand, as an extension of his father and the gutter tactics of Roy Cohn—they’re designed really to keep the wolves away from the door. But he feels he’s been very successful at it. The impeachment failed. The Mueller investigation failed.”
But what happens if he loses? It isn’t clear which legal dominoes fall and how fast. What is evident, though, is that his risk ratchets up the minute he does. And if that’s the way this goes, these terms Trump has started to use more and more are terms we’ll be hearing a ton. He himself has ensured it.
“We have the unique confluence of a president who has stayed very active in the private sector and a president that has a very casual relationship with bright legal lines, and either of those on their own would not be such a sort of font of litigation, but together it’s a potential minefield,” Steve Vladeck, a University of Texas law professor who’s written about presidential immunity, told me. “I think immunity, as both a legal and practical construct, is the watchword for the post-presidency phase of Trump’s career.”
And Trump seems to know it.
“You know, the word immunity means something. Having, having really a protective glow—it means something,” he told Fox News’ Bartiromo.
“It’s very important to have that,” he said again.
“To have that,” he said yet again, “is a very important thing.”
Trump’s self-perception of invulnerability sits at the heart of his entire existence. It always has.
“You know my mantra,” the Trump biographer Gwenda Blair told me. “School of dad,” she said. “School of Roy.”
Fred Trump had a kind of immunity, or acted like he did, using his political connections with the Brooklyn Democratic machine to secure tens of millions of dollars of public monies to get personally rich building thousands and thousands of apartments in Brooklyn—from Shore Haven, which opened in 1949, to Beach Haven (1950) to Trump Village (1964). He drastically overestimated construction costs and architects’ fees to be able to pocket more for himself. He created six different companies to own the actual buildings, but the land itself was owned by a trust, which was to benefit his five children—including, of course, the future 45th president.
By 1954, as part of a sprawling effort at more rigorous federal oversight that ensnared dozens of Federal Housing Administration officials and hundreds of developers, the Senate Committee on Banking and Currency called Fred Trump to testify. Having cleverly identified loopholes in guidelines, having flouted the spirit of the assistance without actually breaking the law, he had concocted a convoluted setup to use taxpayer funds to maximize personal profit. A Republican senator from Indiana declared himself “amazed and aghast.”
With Trump Village, the only substantive difference was that they were state subsidies. Fred Trump spent millions less than his estimated cost. He created a construction equipment company specifically for the job and then charged the state exorbitant rent. He used some of his windfall to buy a site for a shopping center—a personal gold mine—without having to put up any money of his own.
State investigators in 1966 called his business practices not technically illegal but “unconscionable” and “outrageous.” An editorial in the New York Times said “the law must be revised and its administration strengthened” and castigated Trump’s “shoddy practices,” chastising him as a “political profiteer.”
That, though, was the extent of the consequences. Scolded but not sanctioned, admonished but not indicted, Fred Trump again had calculated the coordinates of the hazy space between actually illegal and merely immoral, between outright criminal and obviously wrong. He got to keep the money he made. He kept collecting rent. And he kept grooming his heir—his avaricious second son.
“The climate in those days,” a staff attorney involved in the investigation in ’66 would say later, was that clubhouse guys like Fred Trump “enjoyed psychological immunity.”
And then there was Roy Cohn.
From the mid-’60s to the early ’70s, Cohn had been indicted four times—for stock-swindling and obstructing justice and perjury and bribery and conspiracy and extortion and blackmail and filing false reports with the Securities and Exchange Commission. And three times he had been acquitted—the other trial ended in a mistrial—giving him a veneer of invincibility. The government had tried to get him back, “a vendetta,” he thought, as he wrote in one of his books, for his role as the henchman of the infamous red-baiting Senator Joseph McCarthy. And the government had failed, and Cohn had not fallen or so much as flinched. It had granted him what the Times in 1978 described as “a special unofficial status—virtual immunity from criminal prosecution,” the “pragmatics of the unwritten rules of prosecution” dictating that “anyone who has been acquitted by three juries is an unlikely future target of prosecution.”
“Roy Cohn,” Sidney Zion, a reporter who teamed with Cohn on his autobiography, once said, “thought that he could do what he wanted to do when he wanted to do it.” He “couldn’t have given less of a shit about rules,” said a lawyer in his office. “I decided long ago,” Cohn once told Penthouse, “to make my own rules.”
A young Donald Trump took rapt note.
“What attracted him to Roy Cohn,” Zirin said, “was here is someone who had beaten the system.”
Cohn, who died in 1986, twisted into armor his record of sanction-skirting escapes. A perverse engine of his appeal was what he had gotten away with, and what he might get away with and help others, like Trump, get away with next. Cohn’s rolling master class in the ’70s and early ’80s of graft, of string-pulling, of his strategy of attack and deny and delay, consisted of lessons Trump lapped up. Trump was able to evade the most stringent penalties when the federal government sued him and his father for racist rental practices. He got tax breaks nobody else did. He survived financial and reputational peril in the ’90s.
Only somebody with such a track record of avoidance of comeuppance could have said what he said in the thick of his first real presidential campaign, back in January of 2016, some two weeks before the caucuses in Iowa. “I could stand in the middle of Fifth Avenue and shoot somebody,” Trump said at a Christian college, “and I wouldn’t lose any voters.”
It seemed at the time like a statement about the remarkably unswerving support of his fledgling base. It was in actuality a bald assertion of his own sense of immunity.
“A sense of you can’t touch me—I’m Roy Cohn. And that’s Donald Trump. You can’t touch me—I’m Donald Trump,” Marty London, one of the lawyers who worked on Cohn’s eventual disbarment, told me. “Imagine if Roy Cohn were president,” London said. “That’s basically what we have now. We have a Roy Cohn as president. He has no morals. There are no boundaries. He does what he wants.”
On the line on Election Day, then, is much more than just Donald Trump’s political legacy. It is also his legal future.
Trump is staring at a logjam of pending litigation. He’s being sued for defamation by women who have accused him of harassment and worse. He’s being sued by the attorneys general of Maryland and Washington, D.C., for allegedly profiting off his position by prioritizing his own interests over those of the citizens he was elected to lead. He’s being sued by his niece for fraud. He and the Trump Organization are the subject of a broad, ongoing investigation by the Manhattan district attorney, court filings suggesting the probe is scanning for a host of fraudulent activities. The state attorney general in New York is looking into the Trump Organization in a separate civil investigation. Courts and Congress clamor for his tax returns. The Internal Revenue Service lurks.
In many respects, Trump’s ascension to the White House fueled these challenges, but the office has provided him, too, with a kind of force field his mentors never could have imagined—even when they felt most emboldened, even when they felt most unassailable.
Trump and his lawyers and the William Barr-led Justice Department have argued repeatedly that Trump for all intents and purposes is immune to any semblance of accountability, or even, at times, investigation. They have on these grounds effectively managed at least to put off the imposition of decisions and possible punishments.
“A state court,” Trump’s lawyers wrote six months into his tenure, “cannot control President Trump—who uniquely embodies the Executive Branch—or interfere with his ability to perform his duties.”
And last fall in Manhattan, in weighing whether Trump can block state prosecutors from enforcing a subpoena seeking his tax returns, a judge invoked Trump’s campaign comment about what he believed he could do with impunity on Fifth Avenue.
“Local authorities couldn’t investigate? They couldn’t do anything about it?” the judge asked the president’s attorney. “That’s your position?”
“Correct,” said Trump’s attorney.
“The president,” another one of his attorneys said earlier this year, “is not to be treated as an ordinary citizen.”
“They wave this claim of absolute immunity,” said Donald B. Ayer, a deputy attorney general under President George H.W. Bush, “like a talisman.”
The Supreme Court in Nixon v. Fitzgerald in 1982 decided that presidents are “entitled to absolute immunity”—but “within the ‘outer perimeter’ of his official responsibility.” In other words, however fuzzily defined, there are limits.
This past summer, for instance, the Supreme Court on this front dealt a blow to Trump—even Trump’s two appointees went against him in the 7-to-2 decision—saying he’s not immune from having his financial records subpoenaed. “In our system of government, as this court has often stated, no one is above the law,” Justice Brett Kavanaugh said. “That principle applies, of course, to a president.”
“I don’t think anyone can dispute anymore that delay inures to the benefit of the executive,” Vladeck from the University of Texas told me, “and tilts the scales in favor of the executive, even if the executive was never going to win.” Roy Cohn would be proud.
“Look at how hard it has been to hold him accountable for anything,” Vladeck continued. “He’s had almost a functional immunity … immunity in both the formal and practical sense where there’s just been so little decisive resolution of legal questions about Trump the person and Trump the president.”
Specifics and timetables, of course, are to be determined, but it’s safe to say that this changes if and when Trump loses.
“He will be subject to civil suits, probably a lot of civil suits,” Zirin said.
“He’ll have criminal exposure in New York,” London said.
Vladeck, though, acknowledged the considerable range of uncertainty—even if he loses and loses by a lot.
“The amount of litigation that is likely to survive his presidency; the amount of new things we might learn about, bad things that happened while he was president, once he’s no longer president; the very real possibility that, unlike Nixon, he will not be pardoned by his successor,” Vladeck explained, referring to Gerald Ford’s pardon of Richard Nixon. “I think he’s going to be a cottage industry for litigation against former presidents in ways that frankly the law doesn’t really speak to. I think there’ll be a lot of novel questions about what litigation against a former president looks like.”
The long tail here? It could be very long. And very complicated.
“Maybe,” Vladeck said, “a successor”—picture President Joe Biden, conciliatory disposition, bipartisan bent, an institutionalist—“would make some kind of deal with him where, you know, in exchange for dropping investigations, he agrees to go quietly into the night.”
Given Trump’s history, though, and how he’s been talking, and how he keeps talking, about his immunity, about that “protective glow,” and about how long it might last, a muted retreat seems … unlikely.
“Here I am,” he said Monday at his rally in Tucson. “I’m here. I’m here. And now I’m immune! I can jump into this audience and kiss every man and woman. I’m immune. Right? They say. It used to be you’re immune for life, and then when I got it, I said, ‘I’m immune.’ They said, ‘It’s only good for four months.’ See, if anybody else—you understand that, right? I’ll jump into the audience …”