Opinion | President Trump’s unlikely immune defenses are running out of gas

Donald Trump’s attempts to undo the 2020 election results and avoid criminal liability may finally be hitting a wall. With Mr. Trump in attendance, a three-judge federal appeals court panel appears poised to reject the former president’s absurd claim of absolute immunity from prosecution for his acts in office, even after he leaves office. It looked like.

The audacity of President Trump’s claim has been evident since he raised it in the fall, almost certain it would ultimately fail. Still, the U.S. Court of Appeals for the D.C. Circuit, joined by President George H.W. Bush appointee Karen L. Henderson and Biden nominees Florence Y. Pan and J. Michelle Childs, Something was revealed about the judge’s denial of his motion to dismiss.

“I think today was a very good day,” President Trump predictably declared after Tuesday’s oral argument. But his spin doesn’t let that happen. The panel’s questions got to the heart of President Trump’s astonishing overreach. Their hypothesis revealed the intolerable consequences of establishing such immunity.

And they confronted Trump lawyer D. John Sauer with concessions that his legal predecessors had made on Trump’s behalf long ago. In the New York criminal investigation, Trump only enjoyed “temporary presidential immunity” during his time in office. During his second impeachment trial, Trump argued that he did not need to be convicted because he could face criminal charges.

“We have a judicial process in this country. We have an investigative process in this country that doesn’t affect former presidents,” Trump lawyer David Schoen said during his second impeachment. “It is a natural process. It is appropriate for investigation, prosecution and punishment.”

If there were any doubts about whether Henderson would join the two Biden candidates going into the debate, her comments upheld the trial judge’s ruling against Trump and suggested a unanimous outcome could be possible. was.

Mr. Henderson expressed some hesitation about the consequences of such a decision, asking, “How do you write an opinion that stops a former president from retaliating?” But she also questioned Sauer’s claims about Trump’s alleged immunity. She said, “I think it’s a bit paradoxical to say this, but… [Trump’s] “The constitutional duty to see to the faithful execution of the law allows us to violate criminal law,” Henderson said.

The most chilling part of the Trump team’s argument, the one that illuminated the implications of granting the president the broad immunity Trump claims, involved the elite military unit, SEAL Team 6. Mr. Pan asked Mr. Sauer, “Could the president order SEAL Team 6 to assassinate a political opponent?”

Sauer hedged that a president who issued such an order would be quickly impeached and convicted, arguing that this is a necessary prerequisite for initiating criminal prosecution.

Pan pushed Sauer. “So he hasn’t been impeached, he hasn’t been convicted. Putting that aside,” Pan said, “saying the president can sell pardons, sell military secrets, order SEAL Team 6 to assassinate political opponents. There is,” he said.

Assistant Special Counsel James Pearce emphasized the unimaginable consequences of that position. “What kind of world would we be living in if a president ordered a SEAL team to assassinate a political opponent and, say, resigned before being impeached? That’s not a criminal act,” he said. “It’s not a crime for a president to tout a pardon or resign or not be impeached. I think that’s a very scary future.”

There is also a subtle but important legal point embedded here. As Pan pointed out, the exchange revealed an inherent weakness in Trump’s argument. can Even if indicted, the immunity claimed by the Trump team is clearly not absolute. And if Trump’s lawyers are wrong about the need for pre-impeachment proceedings – and they are, for reasons I’ll explain – then their case will fail.

“Once we accept that the president may be subject to prosecution under certain circumstances, the doctrine of separation of powers disappears and the questions before us narrow down to: Is our interpretation of the articles of impeachment correct? What does the clause actually say?” Pan told Sauer. “That’s all we really have to decide.”

The Constitution’s article of impeachment provides that “the convicted party shall remain responsible and subject to indictment, trial, judgment, and punishment in accordance with the law.” Trump’s lawyers take this to mean that if impeachment or conviction fails, further prosecution will be barred.

But as U.S. District Judge Tanya S. Chutkan pointed out last month in rejecting President Trump’s claims, “Reading the clause granting absolute impunity to a former president does not make sense, It goes against our understanding and common sense.”the purpose was to authorize prosecution in spite of Chutkan pointed out that a conviction in the Senate cannot be blocked in the absence of impeachment proceedings.

There’s an additional wrinkle here. The court could rule that Mr. Trump doesn’t even have the right to appeal at this early stage in the criminal trial, but the special counsel has ruled that appeals are allowed before trial and conviction. I agree with Trump’s lawyers. As a practical matter, this would resolve the issue, but it would not impede the prosecutor’s ability to take the case to trial.

And that’s the real point of the immunity debate. Trump’s lawyers don’t actually expect to win the case. They are simply trying to run out the time past the current March 4 trial date and hopefully past Election Day. Avoiding that will require not only a swift ruling by the committee on Tuesday, but also an equally swift disposition by the Court of Appeals or the Supreme Court when the case inevitably arrives.

Timing isn’t everything here, but it’s pretty close.

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