Today was a huge day in the American constitutional system when the appellate court considered donald "it's all about ME" trump begging the court to let him get away with EVERYTHING under his claim of "absolute immunity" while as President Loser of the Popular Vote (Twice) (via Carrie Johnson at NPR):
In arguments that extended for more than an hour, three judges for the U.S. Court of Appeals for the D.C. Circuit pressed Trump's attorney on his sweeping claims of immunity from federal prosecution...
Trump has pleaded not guilty to four felony counts that accuse him of leading a conspiracy to cling to power and disenfranchise millions of voters in 2020. Prosecutors say that this culminated in violence at the U.S. Capitol three years ago that injured 140 law enforcement officers and shook the foundations of American democracy...
Prosecutors working for Smith say in court papers that if the U.S. Court of Appeals accepts Trump's sweeping claims, it would "undermine democracy." The special counsel team says such reasoning would give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.
James Pearce, representing the special counsel, argued Tuesday that "the president has a unique constitutional role, but he is not above the law." He added that a former president enjoys no immunity from criminal prosecution. To conclude otherwise, he said, would give rise to a "frightening" future.
No former president has ever been charged with a crime. Trump is the first. So an eventual ruling will be a landmark no matter which way the court rules. If the court sides with Trump, the federal case in Washington would be all but over...
Several conclusions from today's brief hearing as noted by Perry Stein at the Washington Post (paywalled):
...The judges seemed skeptical that presidential immunity extends as far as Trump’s lawyers claim it does.
Trump attorney D. John Sauer argued that presidential immunity means that a president cannot be prosecuted for any actions that fall under his presidential duties — unless the House first votes to impeach him and the Senate then convicts him.
Judge Florence Y. Pan, an appointee of President Biden, asked Sauer if a president could be criminally prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Such a scenario — ordering the military to do something — would fall under presidential duties. But having a rival murdered would also be a clear violation of the law.
Sauer said the Justice Department could only charge the president for giving such an order if the Senate votes to convict him first. Pan also asked him whether a president could sell pardons or nuclear secrets without being prosecuted. Sauer responded similarly.
Pan seemed skeptical and said that conceding that a president can be prosecuted for official acts in any instance — say, after the congressional impeachment and conviction process — undermines the president’s presidential immunity argument.
“Given that you’re conceding that presidents can be criminally prosecuted, doesn’t that narrow the issues before us to, ‘Can a president be prosecuted without first being impeached and convicted?’” Pan said. She added, “Once you concede that presidents can be prosecuted under some circumstances, your other arguments fall away.”
The judges were clearly concerned that accepting Trump’s argument would open a Pandora’s box of horrible acts by future presidents that would go unchecked and unpunished.
Trump’s lawyer tried to convince the panel that the real danger was letting this case go forward and opening a door to future presidents operating in fear of being prosecuted when they left office.
Gee, making future Presidents realize they can be held accountable if they break shit? MORE of that, please.
2. The judges’ ruling could rely on their reading of the impeachment clause of the U.S. Constitution.
Lawyers for both sides and the judges spent a chunk of oral arguments debating the Constitution’s impeachment clause. Under Trump attorneys’ reading of the clause, a president can only be criminally prosecuted once Congress has voted to both impeach and convict him.
Congress had voted to impeach Trump for his actions around the Jan. 6 attack on the U.S. Capitol. The Senate then voted to acquit him. At the time, some Republicans said they were voting against conviction because they said the Justice Department could investigate and decide whether to charge Trump...
This becomes part of the circular Catch-22 that the Far Right argued that trump shouldn't be impeached if his conduct was criminal, but then that he shouldn't be charged with crimes because he should have been impeached.
But we've seen impeachment and how it doesn't work: It is too partisan a mechanism. Relying on impeachment for accountability would never happen if the corrupt President's party controlled Congress and refused to be bipartisan enough to vote for removal. Impeachment is a political tool, not a prosecutorial one. That argument also ignores how previous former Presidents facing criminal charges for acts done in the White House - Richard Nixon and Bill Clinton - still had that happen even though impeachment never removed them from office (Nixon resigned first and then took a pardon, and Clinton survived the Senate vote and pled out his perjury counts). Saying that impeachment triggers double jeopardy doesn't pass the established case law.
3. The judges questioned whether Trump’s actions around the Jan 6. attack on the U.S. Capitol qualified as his official presidential duties — and whether the appeals court should even decide this.
Sauer said Trump’s actions around Jan. 6 — including meeting with the Justice Department and members of Congress about his belief that the election was stolen — were part of his presidential duties.
He also said Trump’s Twitter social media posts, some of which encouraged people to go to the Capitol on Jan. 6, also constituted an official presidential communication channel.
“All of those tweets were obviously immune,” Sauer said.
In a notable exchange, Judge Karen Henderson, an appointee of President George H.W. Bush, seemed skeptical of that claim, saying: “I think it’s paradoxical to say that his constitutional duty to take care [that] the laws be faithfully executed allows him to violate federal laws.”
But she also raised the idea of sending the case back to the U.S. District Court to untangle whether Trump’s alleged acts were part of his official duties or discretionary and carried out in his capacity as a private citizen...
Judge Henderson may express that concern but it's uncertain if the other two on the panel will agree with her. This could prove a potential delay in the March trial related to this matter, but by the looks of it the whole panel isn't buying that inciting a mob to riot against Congress is part of the Executive's duties.
4. Trump attended the hearing in person, suggesting he believes his criminal prosecutions could boost his presidential bid.
One of the paradoxical problems with putting trump on criminal trial for his actions is that trump can use this to paint himself the victim of "the real crooks, the Democrats" even as he faces every likelihood of failing these appeals and finding himself in a federal court three months from now. trump is also using these trials as a means of keeping his MAGA supporters stoked and angry and ready to riot - again - on his orders should a Guilty verdict be reached before the November general election.
But trump is also powered by his narcissism. He showed up in court today as though his mere presence could intimidate the appellate judges into granting him the immunity he craves.
trump isn't interested in the legal ramifications of what he's arguing for - that a sitting President can never be held accountable for any actions committed during his tenure - he is only interested in making sure that immunity from the law applies to himself. That trump's arguments would clearly grant Joe Biden - the current sitting President - to apply that immunity by ordering a SEAL Team to assassinate trump doesn't seem to register in that Id of his. Probably because he's convinced Biden is too much of a political wimp - that Biden as a career politician respects the limitations of the office, and won't break actual laws no matter how much the Far Right lie to themselves about Biden being corrupt - to take the dark route to power trump aspires to take.
We have to remember: For decades trump has been thumbing his nose at the legal system as a businessman committing corrupt act after corrupt act, bankrupting his casinos, breaking contracts with workers, bullying victims to settle out of court, making a mockery of regulations because our prosecutors and oversight agencies never take white-collar fraud serious enough. trump is used to the idea of being immune from accountability, and he's struggling to come to terms with all the recent courtroom setbacks that are about to cripple his empire.
trump is hoping - begging even, although he'll never admit it - that the appeals court grants him that immunity, because it clears the electoral battlefield of the federal charges he's facing in DC and South Florida and makes it easier to defy the state-level trials awaiting him in New York City and Fulton County. Without that haunting him, trump can then attack Biden with impunity while his allies in the US House and Red states conspire to throw the Electoral College to trump in spite of the likely popular vote going Biden's way.
And if trump achieves all he desires, if trump regains control of the Presidency? With that belief in HIS absolute immunity, trump will run amok as a dictator the likes of which our nation's never seen (via Greg Sargent now at New Republic after the WaPo downsized him):
But there’s another way to understand Trump’s move: It’s about what comes next. If he wins on this front, he’d be largely unshackled in a second presidential term, free to pursue all manner of corrupt designs with little fear of legal consequences after leaving office again.
That Trump might attempt such moves is not idle speculation. He’s telling us so himself. He is openly threatening a range of second-term actions—such as prosecuting political enemies with zero basis in evidence—that would almost certainly strain the boundaries of the law in ugly new ways.
Now imagine him pursuing this project with a get-out-of-prosecution-free card in his pocket. “It really would permit him to be completely unconstrained if he were reelected,” Neil Eggleston, who served as White House counsel under President Barack Obama, told me...
It’s been said on social media that if Trump wins here, his second-term powers would be quasi-absolute—that he could order, say, the assassination of political foes with impunity. That overstates the matter. As former White House lawyers told me, if Trump prevails, the courts will likely affirm that actions within the “outer realm” of official duties are immune to prosecution, not that any actions (such as assassinations) are.
But a favorable decision could still unshackle Trump in a big way. Trevor Morrison, associate White House counsel under Obama, says the key is whether the courts rule that Trump has immunity on the theory that his alleged criminal conduct does fall in the outer perimeter of presidential duties—and how the courts define that perimeter. If they accept Trump’s broad version of immunity or something like it, he might argue that future potentially criminal acts also fall within that perimeter...
Kristy Parker, counsel at Protect Democracy who served as a lawyer in multiple administrations, notes that Trump has signaled clear intent to do exactly this sort of thing. He has attacked Willis’s prosecution of him as corrupt, hinted at full-scale persecution of “vermin” Americans who oppose him, and openly threatened to prosecute President Biden as retribution. “If I don’t get immunity, then Crooked Joe Biden doesn’t get immunity,” Trump recently raged.
In saying this, Trump essentially declared that if he is denied immunity, he will prosecute Biden on a fake finding of corruption, just as he invented corruption as a pretext for his alleged election crimes. What happens if those efforts to name and target fabricated corruption are in some sense deemed official acts?
“Trump has threatened to use the presidency to punish enemies, reward friends, and protect himself,” Parker told me. “If the courts recognize immunity for the broad array of official acts of the presidency, that will incentivize Trump to abuse those powers further...”
Gods help us if this happens.
FOR THE LOVE OF GOD AND DEMOCRACY AND THE RULE OF LAW, JUDGES, DO NOT GRANT trump ABSOLUTE IMMUNITY.
And for the LOVE OF GOD, AMERICA, DO NOT VOTE FOR trump.
