Trump’s Presidential Immunity Claim
It remained that the wildest part of yesterday’s federal appeals court hearing over Donald Trump’s claim to blanket immunity — to anything civilly or criminally illegal he may have done or will do as president — that the proceeding took place at all.
In place of a public pitch for humility and a reasoned or even impassioned call for grace, here were hired legal guns for Trump insisting that yes, indeed, he could shoot someone on Fifth Avenue as president and walk away without legal hesitation of any kind.
Indeed, the hour-plus of argument was filled with hypotheticals about enough misdeeds by future presidents and past ones, stretching the imagination to fill a full series of White House Law & Order plots.
The live feed from the courtroom was a dramatic and dangerous teleplay of an autocrat who would be king — Trump was present for the hearing — deigning to even discuss the idea that equality before the law is something more than a catchphrase to parade ceremonially around the Fourth of July.
No, the argument went, Trump is beyond the reach of the law, and if he isn’t, other presidents, including the current one, should be holding onto their legal britches for dear life. Without a court-guaranteed federal shield, Trump vows that, if elected, his vengeance Justice Department will target Joe Biden and his administration.
In a bow to legal irony, Trump filed a new legal claim for immunity from state criminal charges in Georgia on the very day that the appeals court was hearing his arguments about whether immunity for presidents, former presidents and would-be presidents represent a valid legal position.
As expected, the questions from appeals court justices generally followed the various written briefs already submitted. The live feed made the legal debate relatively restrained and reasonable, and somewhat distant from the facts of a literal criminal case involving leaning on local elections officials to find fraud or votes, to send alternate, fraudulent electoral slates to Washington, and finally to turn to a violent riot on Jan. 6, 2021.
Key questions were what exactly constitutes “presidential immunity” and how, if at all, it applies to Trump’s efforts to overturn his 2020 election loss. Lawyers for both sides and the three judges hearing it seemed satisfied that the immunity issue should be settled now, while acknowledging that there may be further trial claims to play out later.
There was less agreement about whether Trump had been acting as president or as a candidate for reelection — a factor for the immunity claim. Much of the hearing dwelled on the procedural issues of overlap or separation of criminal charges from an impeachment effort that fell short of conviction in the Senate.
Should the three-judge appeals court uphold the claim of “absolute immunity,” the case against him would have to be dropped for interfering with the official count of ballots.
For an issue that seems so rare, it was interesting to hear just how much support lawyers for each side could seek out from previous Supreme Court cases back to the early 1800s and from historical commentaries.
While there were quotes that we will hear echoing in television commentaries, one stood out. The court’s lone Republican appointee, Judge Karen Henderson, said at one point that, “I think it’s paradoxical to say that his [a president’s] constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.”
Clearly, the court will feel pressure to write a timely decision, resolving as many legal issues as possible in a way that will allow the criminal trial against Trump to continue or end — and to permit the Supreme Court to sidestep any unresolved Constitutional questions.
Legal Color Commentary
The televisions pundits seemed to giver the weight of legal arguments to the government rather than to Trump.
Of course, the political airwaves will resound with amplified political ripples of Trump victimhood if the decision knocks down the immunity argument.
Historians seem to agree that there is no support to extend even partial immunity, as it may exist during a presidency to a former president. Indeed, much more of the evidence points to the opposite conclusion, with the likelihood of criminal charges against Richard Nixon until his pardon at the forefront.
District Court Judge Tanya Chutkan, presiding in the Jan. 6 case, wrote that whatever immunities a sitting president may enjoy, the position “does not confer a lifelong ‘get-out-of-jail-free’ pass.” Another recent appeals court said the same in a civil suit that had drawn the same Trump claim.
All sides agree that the case raises novel issues — for the obvious reason that no previous president has tried to undercut the counting of ballots and suborn the peaceful transfer of power.
However nervous during the hearing, it was both refreshing and strangely reassuring to hear actual legal debate instead of sloganeering and braggadocio.
Still, the questions focused on the law and not on the more obvious questions, for example, about why Trump watched violence in his behalf unfold on his White House television, lifting nary a finger to stop it. If the immunity question passes, we may yet hear those.