Trump’s Frivolous Immunity Claim
Throughout his professional career, when Donald Trump has been challenged in court, his litigation strategy has invariably been “Delay. Delay. More Delay.”
That apparently is his goal for the federal criminal cases pending against him in Washington, DC and Florida, and for the cases pending in Georgia and New York.
If Trump can delay the federal cases until after the November election and if he wins the presidency, he can have his Justice Department dismiss the cases.
That potential reality should be kept in mind next Tuesday when the U.S. Court of Appeals for the District of Columbia Circuit hears oral argument in the federal criminal case brought by Special Counsel Jack Smith against Trump for his efforts to overturn the 2020 presidential election.
On December 1, federal district court Judge Tanya Chutkan ruled that there is no constitutional basis for Trump’s claim that he had absolute immunity from federal criminal prosecution for actions he took while in office.
On Tuesday, a three-judge Court of Appeals panel will hear oral argument in Trump’s appeal from that ruling. If he loses, Trump could further appeal to the full Court of Appeals or to the Supreme Court.
Judge Chutkan has scheduled Trump’s 2020 election interference trial to begin on March 4, but she has put preparations for the trial on hold during the appeals process, including work related to jury selection.
The potential appeals could delay the trial past March 4, as could other legal maneuvers that Trump may attempt. Furthermore, if Trump is the Republican presidential nominee, the window for a federal trial of Trump would very likely close by the end of August.
It’s important for the courts to resolve on an expedited basis Trump’s claim of absolute immunity.
Last week, 16 former prosecutors, elected officials, other government officials and constitutional lawyers filed an amicus brief in the D.C. Court of Appeals supporting Judge Chutkan’s ruling that Trump is not immune from criminal prosecution.
The amici included individuals who were appointed during the Republican Administrations of Presidents Nixon, Reagan, George H.W. Bush, George W. Bush, and Trump.
Seth Waxman, former U.S. Solicitor General and a partner at WilmerHale, was lead counsel on the amicus brief. Democracy 21 helped organize the brief.
According to the brief: “Far from barring the prosecution of former Presidents, the Constitution’s text explicitly contemplates such proceedings.”
The Constitution, the brief states, “does not confer any kind of immunity upon former Presidents for conduct that violates the criminal laws of the United States and instead contemplates that a former President might be prosecuted for crimes committed in office.”
The brief spells out that former Presidents have recognized their and their predecessors’ vulnerability to prosecution – from Presidents Ulysses S. Grant to Richard Nixon to Bill Clinton to Donald Trump himself.
The brief specifically notes Trump’s own recognition that he is not immune from criminal prosecution:
“Indeed, defendant himself acknowledged during his second impeachment trial that a former President is subject to criminal prosecution for allegedly official acts. His counsel made clear that ‘no former officeholder is immune’ from the criminal judicial process. […] Just as importantly, Senators voting for acquittal at defendant’s impeachment trial expressly relied on the continued availability of criminal prosecution for the President’s wrongful actions.”
The immunity Trump claims, the brief notes, “would break with settled practice and tradition and contradict the positions defendant himself previously took regarding his exposure to criminal liability.”
According to the brief:
“Even if one could hypothesize a circumstance in which immunity for a former President might be warranted, no tenable formulation of immunity could reach defendant’s machinations alleged here. [… Trump] allegedly acted to thwart the peaceful transfer of power that the Constitution demands. Any immunity that would shield those acts would contravene fundamental constitutional provisions.”
Trump’s actions, the brief continues, represent “a breach of our republican form of government that would have outraged the Founders.”
Trump’s claim of absolute criminal immunity is frivolous and a stark rejection of the nation’s foundational idea that no person is above the law.
It is yet one more example of the endless efforts by Trump to protect himself by delaying legal actions against him.
Our Founders fought a revolution to get rid of a king. They took steps to ensure we would never have another one – including a President who thinks and acts like a king.
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Fred’s Weekly Note appears on Thursdays in Wertheimer’s Political Report, a Democracy 21 newsletter. Read this week’s and other recent newsletters here. And, subscribe for free here and receive your copy each week via email.
