ChrisWeigant.com

Trump's Immunity Claims Get Their Day In Court

[ Posted Tuesday, January 9th, 2024 – 16:40 UTC ]

Donald Trump has long believed that because he was president, he was constitutionally allowed to do anything he pleased, without any possibility of ever having to answer for any of it in any way. He explicitly stated this belief while he was president and he has claimed the same sweeping immunity ever since he left office as well. He truly believes that somewhere in the Constitution is a clause that essentially bestows the divine right of kings upon the U.S. president. A president's actions can never be challenged in court because of this supposed loophole, in other words (according to Trump).

Just because Trump believes this to be true, however, does not actually make it true. Far from it. Today, Trump's fantastical views of presidential immunity hit the brick wall of legal reality in a courtroom. A three-judge panel of the D.C. Circuit Court of Appeals heard Trump's arguments today, and (to put it mildly) they were not very impressed by them. Their ruling is now seen as almost a foregone conclusion -- the only real question is whether it will be a 3-0 unanimous decision or whether one of the judges might dissent. At this point, a unanimous ruling appears much more likely, as even the Republican-appointed judge on the panel (appointed by George H. W. Bush) showed a healthy degree of skepticism towards Trump's claims.

The case under appeal is the federal case dealing with the January 6th insurrection attempt. Trump's team made two legal arguments, neither of which held much water with the judges. The first is that Trump is immune because the Senate refused to convict him after he was impeached over the matter. The second is that Trump is immune because everything he did was an "official act" of the president, and therefore cannot be questioned by the judicial system. Trump is arguing, in two separate ways, that he deserves a "Get Out Of Jail Free" card.

The judges were not impressed.

Trump's first argument attempted to twist a clause of the Constitution to mean something it does not actually say. In laying out how the Senate shall conduct impeachment trials, Article I, Section 3 of the Constitution says:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

That final clause was obviously inserted to make sure that an impeached and convicted officer could not claim "double jeopardy" later, if the criminal justice system prosecuted him or her. The whole sentence is pretty easy to understand -- an impeachment trial is not a criminal trial at all, since it can only remove someone from office and ban them from ever holding office again. Those are the only possible penalties, and they are political in nature. The final clause assures the public that whatever wrongdoing which caused the House to impeach and the Senate to convict could also be criminally prosecuted afterwards.

Trump's legal team, however, latched onto the phrase "the Party convicted" and attempted to turn it on its head. They claim that because it was worded this way, if someone is impeached and not convicted, somehow this clause means that they cannot be held accountable by the justice system -- that Trump deserves a "Get Out Of Jail Free" card because the Senate refused to convict him. This is pretty nonsensical on the face of it, which was pointed out by both the prosecution today and the judges themselves. The best example that came up was: What would happen, for instance, if a president ordered SEAL Team 6 to assassinate a political rival either right before the end of the president's term in office, or if the president resigned from office the next day? Would that some how make him or her immune from prosecution for ordering the U.S. military to murder a political rival?

That is patently absurd, of course. And Trump's former legal team actually made the argument during his impeachment trial that the Senate should refuse to convict him because he was no longer in office -- and that the judicial system could then try him for any crimes. This was Trump's argument, mind you. His lawyers today had to disavow Trump's previous lawyers' argument, which was pretty embarrassing for them (one assumes).

The Constitution's clause is pretty clear -- a former officer of the United States can indeed be prosecuted for a criminal offense even if he has been previously impeached for the same offense. Period. It does not mean the exact opposite of what it actually says, in other words.

Trump's second legal argument was just as weak. His lawyer claimed that because Trump was president, everything he did after the election was somehow an "official act" of the president. He wasn't politically trying to save his skin by overturning the will of the people, he was instead merely investigating accusations that there had been election fraud. This is so laughable it doesn't even need explaining. But it fits in with Trump's long-held view that presidents can essentially do anything they please without any fear of any legal consequences later, no matter how illegal the acts may be.

None of the judges seemed very receptive to either argument Trump made, which is why most court-watchers today are predicting Trump is going to lose his appeal, and lose badly. The prosecution requested that the panel of judges issue a ruling within five days, which could actually happen (the whole appeal has been fast-tracked, so the ruling may appear astonishingly quickly). What happens next, however, is anyone's guess.

There are two more possible steps Trump could take. He could appeal the ruling to the entire D.C. Circuit Court of Appeals and have all 11 judges hear the case again. Whether that works or not, Trump could then appeal to the Supreme Court.

The best possible outcome for the prosecution would be a swift ruling in their favor -- a ruling which upheld the trial judge's rejection of Trump's claims -- followed by both the full court of appeals and the Supreme Court just refusing to take the case. This would mean that both courts agreed fully with the initial ruling and saw no real reason to rehash the arguments.

If the full court of appeals hears the case, the biggest impact is likely to be further delays in the courtroom schedule. The trial is currently scheduled to begin on March 4th. If the full court of appeals hears the case, that date will likely slip by at least a few weeks. But the bigger delay could come if the Supreme Court decides to hear Trump's appeal. They could push back a ruling until June, or even dawdle until their next term begins in October. Doing so would give Trump exactly what he wants -- a delay so long that the case won't be over until after the election.

Chief Justice John Roberts is already going to have to address a few other significant cases which will have outsized impacts on politics and the presidential campaign. But Roberts absolutely hates the Supreme Court getting involved in politics, and reportedly wants to avoid doing so if at all possible. The easiest way for him to achieve this in this case would be to refuse to hear Trump's appeal after the appellate ruling against him. The Supreme Court would say to Trump: "Sorry, but the appeals judges got it right."

It takes four justices to vote to hear any particular case at the highest court. If the three liberals and Roberts decide hearing Trump's appeal would be a waste of time, they'd have to convince two more of the conservatives to vote against taking up the case. Whether this will actually happen is really anyone's guess. But it really would be a powerful statement by the court.

Donald Trump's fantasy that presidents can do -- and get away with -- anything they please while they are in office (and afterwards) is about to be smacked down... again. The legal arguments he put forth today are ridiculous on their face. It would take a whole lot of legal contortions for any court to agree with them. But the big question remains -- how long will the process take? Will Trump's January 6th trial happen in a timely manner, or will the courts aid his desire to delay everything so long that the election happens before a verdict is ever announced? While the outcome of today's hearing is pretty predictable, the timeline of what happens afterwards is not.

-- Chris Weigant

 

Follow Chris on Twitter: @ChrisWeigant

 

12 Comments on “Trump's Immunity Claims Get Their Day In Court”

  1. [1] 
    nypoet22 wrote:

    Why would Donald or his lawyers be embarrassed about anything? He doesn't believe presidents have divine rights, unless those presidents are him.

  2. [2] 
    Kick wrote:

    CW

    Their ruling is now seen as almost a foregone conclusion -- the only real question is whether it will be a 3-0 unanimous decision or whether one of the judges might dissent.

    If you want to know how ridiculous it would be for Trump to prevail on the immunity issue, imagine Jack Smith's team appealing to the SCOTUS requesting a decision post haste before the current President lawfully requests the execution of his political opponent, one Donald J. Trump.

    Poor Donald is now whining that if he doesn't have immunity, then neither does Biden; what he's seemingly failed to factor in is that Biden is the current president who obviously has the Senate and therefore the immunity to hoist Trump by his own petard.

  3. [3] 
    Mezzomamma wrote:

    I gather the court could stipulate that any further appeal must be made within a specified time. I hope so.

    It would of course be ironic justice if the delaying tactics mean a seriously adverse judgement at just the right time to scupper his chances--think of the 'her emails' timing.

  4. [4] 
    Elizabeth Miller wrote:

    "Her emails" are not what did her in.

  5. [5] 
    Mezzomamma wrote:

    They didn't help.

  6. [6] 
    Steedo wrote:

    Kick always manages to cut right to the critical issue. How about if Biden sends Seal Team 6 to Mar a Lago to whack the traitor and then let the legal system run its course. I like it.

  7. [7] 
    Kick wrote:

    Mezzomamma
    3

    I gather the court could stipulate that any further appeal must be made within a specified time. I hope so.

    When the panel of 3 judges issues their ruling that will (spoiler alert) not grant absolute immunity to current POTUS Joseph Biden or any presidents past or future, living or deceased, the court will then issue a Writ of Mandamus that sends the case back to the lower Court, Judge Chutkan, and automatically ends the stay. Jack Smith has asked that the appeals court issue the writ only five days after it renders its decision.

    So when Trump loses (again), he will then have to take further action to secure a new stay (delay) pending further review by the full appellate court en banc or to the Supreme Court, depending on the Writ of Mandamus. The appellate panel could rule that the mandate will issue five (or maybe up to 10) days after its judgment regardless whether a petition for rehearing en banc or a petition for certiorari petition is filed to SCOTUS, and if that is the case, there's no incentive to petition for rehearing en banc because there's no stay (delay) granted. Then Trump will likely file a petition for certiorari with the SCOTUS within five (or maybe up to 10) days after the judgment whereupon he loses (again). If he's given a stay by the panel, he'll obviously (attempt to) delay as long as he can.

    I hope that makes sense.

    It would of course be ironic justice if the delaying tactics mean a seriously adverse judgement at just the right time to scupper his chances--think of the 'her emails' timing.

    Good point. I certainly would never be one to rule out Trump being hoisted by his own petard. :)

  8. [8] 
    Kick wrote:

    Elizabeth Miller
    4

    "Her emails" are not what did her in.

    I see you saw the words "her emails" and then proceeded to (not surprisingly) miss the entire point of the post.

    You should allow her emails to stop doing you in. :)

  9. [9] 
    Kick wrote:

    Steedo
    6

    Kick always manages to cut right to the critical issue.

    I try, even if I sometimes get wordy and obnoxious in the attempt.

    How about if Biden sends Seal Team 6 to Mar a Lago to whack the traitor and then let the legal system run its course. I like it.

    You're kidding, right!?

    Trump is (reportedly) going to be in Judge Engoron's court TOMORROW not giving closing arguments in the fraud trial he's already lost... send NSWDG to New York. ;)

    https://www.youtube.com/watch?v=EUrUfJW1JGk

  10. [10] 
    Steedo wrote:

    Kick- Yes I am kidding, just a thought experiment along the lines of "I guess Kamala Harris as VP can void the next election if we don't like the result." These clowns still don't realize that whatever godlike powers they claim the traitor possesses are available for Uncle Joe right now.

  11. [11] 
    Kick wrote:

    Steedo
    10

    Yes I am kidding...

    You mean you don't think Biden should send NSWDG to New York tomorrow instead of Mar-a-Lago!? Heh.

    These clowns still don't realize that whatever godlike powers they claim the traitor possesses are available for Uncle Joe right now.

    Uncle Joe would never do anything untoward like that, but I wouldn't put anything past Dark Brandon. ;)

    Seriously, though, I wish Donald Trump a loooooooooong life traveling from court to court, civil and criminal, back and forth, to and fro' and back again until he's paid monetarily to each and every, all and singular of We the People of the United States whom he's injured physically and/or attempted to defraud monetarily and to disenfranchise because he's simply too small of a man and a pathetic turncoat to America with a miniscule ego that could not handle the fact he's a loser.

  12. [12] 
    Chris Weigant wrote:

    Kick -

    I hope that makes sense.

    It did! Thanks!

    :-)

    -CW

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