“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity…We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
The D.C. Circuit Court of Appeals, rejecting former President Donald Trump’s bonkers claim that Presidents have absolute immunity from criminal prosecution for acts committed while in office.
The ruling is here.
Seldom has any court appeal in a high profile case had a more obvious and virtually assured resolution. The ethics alarms analysis of this issue was discussed in “Ethics Zugzwang In Trump’s Immunity Appeal,” and in this subsequent post. I hope it’s unnecessary to say that I agree with the D.C. Circuit’s ruling.
I wonder if Trump considered that if he won the appeal, President Biden could order that he and his MAGA supporters could be summarily shot as “clear and present dangers to democracy.” He could order the execution of the Republican contingent in the House, too, to forestall an impeachment.
What a great theory.
It was unethical for Trump and his lawyers to make the argument. If I had been his attorney—and before all the dust settles, Trump might eventually have to retain lawyers as inexperienced in litigation I am, and maybe even me—I would have withdrawn before I’d file such an irresponsible appeal.
Ethics Alarms 
Perhaps he was just throwing stuff at the wall to see what would stick?
What if this immunity challenge was actually useful for clearly establishing a boundary for future M.A.D lawfare?
That is one way to put it.
Criminal defense attorneys have great legal and ethical leeway to throw stuff at the wal, especially in pretrial proceedings.
<blockquote>It was unethical for Trump and his lawyers to make the argument</blockquote>
Criminal defense attorneys have a lot more legal and ethical leeway than prosecutors to make creative interpretations of the law, to make novel arguments for unprecedented circumstances. it is up to courts to reject outlandish interpretations.
There are plenty of other reasons that the courts must dismiss these indictment (<i>qualified</i> immunity, rule of lenity, First Amendment, and possibly others) But for reasons I find compelling, courts do not adjudicate questions not before them.
“He could order the execution of the Republican contingent in the House, too, to forestall an impeachment.”
Who says the court has to be consistent? They could rule that Trump has to follow the law, but Biden can order Repubicans in Congress to be shot. Biden ordered the Border Patrol to cut barriers to illegal entry and escort people into the country illegally. This violates several points of federal law, but the courts ruled it permissible.
Non-lawyer here. So… is it a lawyer’s obligation to act in the best interest of his/client only in the legal procedure per se, or in the overall best interest of the client? I think those two are at odds in this case.
If the former, then throwing things at the wall and hoping something sticks is a reasonable strategy, especially if delaying the trial as long as possible is a goal, which it clearly is. But Trump also seeks to regain the presidency, and the immunity argument is so transparently stupid that it smacks of desperation. And that suggests to the handful of people who haven’t already predetermined his guilt or innocence (irrespective of the actual verdict in the case) that he believes the evidence against him is sufficient to convict him unless this Hail Mary pass actually succeeds. That makes him less likely to receive the votes of those folks, making the success of his presidential bid less likely. The court of law vs. the court of public opinion.
This tactic reminds me of a case I wrote about a dozen or so years ago (Jack wrote about it, too, btw) in which a lawyer sued a school that had busted his kid for plagiarism. I speculated at the time that the suit may have gotten the kid back into honors English, but ultimately the publicity made it less likely he’d get into the prestigious university of his choice, because father and son would be revealed as arrogant assholes whom no one wants anywhere near their school.
There is a great deal of distrust in the criminal justice establishment.
Absolutely valid point. I think I alluded to it in one of the earlier posts: why make such a desperation argument if you aren’t desperate? Trump claims he is innocent of all criminal charges, so why appeal (or file in the first place) while embracing a position that you need such immunity? Especially if there is just about no chance that you will prevail? CNN and others are expressing surprise at how complete the appeal’s defeat was, with no sympathetic words for Trump’s position at all. I have to wonder if that media narrative isn’t contrived to make the defeat seem worse than it was. Who didn’t expect the Trump argument to be a loser? Virtually no one with a law degree (or without one) expected anything but a slapdown.
“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity…We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
Can we prosecute Biden for flagrantly ignoring SCOTUS rulings and current immigration law.
I wonder why was it necessary for the appeals court to summarize the allegations against Trump which seemed to me to be designed to pass judgement on the allegations in favor of the prosecution. If the question is do president’s have criminal immunity from behavior during their term why not just go to the relevant precedents that undergird their decision? That is all that is needed.
While I agree that absolute immunity from prosecution for a president is a bridge too far for me, as a sixty seven year old American, I have little trust in the courts anymore. The DOJ has become the enforcement arm of the left and seems far too many judges, prosecutors and politicians are concerned more about ensuring that they stay in the good graces of the powerful and well connected.
Call me a cynic.
One would think the Court would stick to standard rules, to at least have the appearance of impartiality, to just treat Trump is accordnace with the rules and precedents that apply to all litigants.
After all, this Court wrote, Trump gets no special treatment. As an example, the Court declined to rule of First Amendment, qualified immunity, or rule of lenity issues, despite that each of these are sufficient to dismiss the indictment, because none of these questions were before the Court.
But neither should the prosecution get special treatment. Trump is entitled to a 90 day deadline.
I have to believe that Trump’s argument is meant to be officially slapped down so that Biden can be prosecuted immediately. When Biden is ousted from office, Trump will look around innocently and say, “The Supreme Court itself ruled that a sitting President is not immune from being prosecuted for illegal actions during his tenure as president…”
I agree. And if we are both correct…well, where’s that image of the train flying off the collapsed bridge?
Off topic, but I did not realize Statler sat on the bench!
“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity…”
So, apart from the vague terms of “high crimes and misdemeanors,” is there no point (other than an election) at which a president (e.g. Joe Biden, just to pick a name out of a hat) can be held accountable for chronically and habitually violating this sworn constitutional duty? If so, what would this process be? Immigration laws long on the books are ignored daily.
Similarly, the President’s cabinet members take the customary oath to “…well and faithfully discharge the duties of the office on which I am about to enter…”. The statutory duties of the Secretary for Homeland Security include the “…duty to control and guard the boundaries and borders of the United States against the illegal entry of aliens…” Has Secretary Mayorkas fulfilled this duty?
Is all this oath-taking just for show and really meaningless? Is there no point at which incompetence and indifference to our homeland security become grounds for lawful removal of the Secretary? If so, what is the proper process? Are all our incompetent cabinet members in fact home free, no matter how blatantly they ignore their duties, so long as they are in lockstep with the President?
I have heard some folks defending Mayorkas by saying, “He’s just following the President’s orders.” The “I was just following orders” defense didn’t work too well for the Nazi generals and shouldn’t work for these politicians either.
I am heartsick over the continuing decline of my country.