Top Legal Experts Refute Trump’s Immunity Claims Ahead Of Court Of Appeals Oral Argument
On Tuesday, January 9, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in the case United States v. Donald J. Trump. The three-judge panel will hear former President Trump’s appeal of Judge Tanya Chutkan’s recent ruling that he does not have immunity from federal prosecution for actions he took while in office.
A panel of legal experts all strongly agreed in a Thursday press briefing that no one is above the law, there is no constitutional basis for Trump’s immunity argument, and the case should be allowed to move swiftly.
The press briefing was moderated by Democracy 21 President Fred Wertheimer and hosted by Democracy 21.
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EXCERPTS FROM THE JANUARY 4, 2024 BRIEFING
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Ty Cobb (former White House Special Counsel, Trump Administration):
“No man is above the law. That is fundamentally the American approach to freedom and governance. It’s essential that it be maintained. Trump’s arguments that he acted in connection with his official duties are sadly frivolous. … [Trump’s] concept of the law, as it applies to the President, uniquely is misguided and without foundation.”
“Trump conceded in his second impeachment that the criminal justice process was available for any crimes that may have been committed by himself or any other former officers of the United States. He’s going to have a hard time overcoming that concession and admission.”
George Conway (Principal author of the 1997 brief opposing immunity for President Clinton in Clinton v. Jones):
“There is no constitutional immunity expressed or implied by the U.S. Constitution’s separation of powers. [Trump] loses either way.”
“The absolute criminal immunity that Trump seeks is part and parcel of authoritarianism and it is something that only an authoritarian personality like Donald Trump could dare suggest. … He wants to be above the law; he wants to be President so he doesn’t go to jail.”
Amb. Norman Eisen (ret.) (Special Counsel to House Judiciary Committee majority, first Trump Impeachment and Trial):
“If Donald Trump were to be afforded the form of immunity that he seeks as a former President, the election to the presidency would serve as a ’get out of jail free’ card … that would allow the Oval Office to become the setting for a crime spree. … It cannot be right that any fig leaf of connection to official duties allows a President to have absolute immunity from criminal prosecution.”
“Clearly [Trump is] playing for delay here, because he’s hoping to be successful in his pursuit of the White House. … Can we have any doubt that he would seek to pardon himself or simply order the DOJ to drop the case? That is the reason that he’s seeking delay.”
Olivia Troye (former special advisor to Vice President Pence):
“Should [Trump] be granted immunity, the lesson that we will be teaching not only him, but others of opposing parties that we may not necessarily agree with, is that they can get away with pretty much anything. … [T]here won’t be any guardrails. … And that will be the lesson that we will be teaching other potential future leaders of our country and that is also the lesson that we are telling the entire world and the international community, which to me is incredibly dangerous, and undermines the beacon of democracy that America stands for.”
“I think it would be prudent to hear from some of these Republican Senators who voted to acquit [Trump] during Trump’s second impeachment because they expressly said that they were going to rely on the availability of criminal prosecution for Trump to be held accountable for his wrongful actions via the judicial court system.”
Fred Wertheimer (Founder and President, Democracy 21):
“We need to keep in mind that, when it comes to litigation challenging Trump, his legal strategy throughout his professional life has been, ‘Delay, delay, and more delay.’”
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KEY FACTS
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>> Former President Trump’s position that he has absolute immunity cannot be squared with the Constitution’s text, structure, or history.
>> As noted in Judge Chutkan’s ruling, there is no “Presidential Immunity” clause in the Constitution.
>> There is widespread consensus on this. Sixteen Republicans – former prosecutors, elected officials, other government officials, and constitutional lawyers, including individuals appointed in the Nixon, Reagan, George H.W. Bush, George W. Bush, and Trump Administrations – submitted an amicus brief on December 29 to the U.S. Court of Appeals for the District of Columbia. These experts – including Cobb, Conway, and Troye who appeared at the Thursday briefing – support Judge Chutkan’s ruling that Trump is not immune from prosecution.
>> Former Presidents have always recognized their vulnerability to prosecution, as well as the vulnerability of their predecessors. This has extended from President Ulysses S. Grant to Richard Nixon to Bill Clinton to Donald Trump himself.
>> As Trump himself put it in his second impeachment trial, “We have an investigative process in this country to which no former officeholder is immune.”
>> Just as importantly, Senators voting for acquittal at Trump’s impeachment trial expressly relied on the availability of criminal prosecution for the President’s wrongful actions.
>> As the amicus brief points out, under Trump’s interpretation, “the Executive would lack power to prosecute all current and former civil officers for acts taken in office unless Congress first impeached and convicted them. That would permit countless officials to evade criminal liability, including when the charges do not fit into the class of crimes that qualify for impeachment, and potentially when officials’ crimes are discovered only after they leave office.”
>> In a Washington Post column on Tuesday, Jennifer Rubin wrote that the amicus brief “demonstrates fidelity to the clear meaning of the Constitution.” The brief, Rubin wrote, “not only dismantles Trump’s preposterous claims to immunity but also rebukes the entire GOP that has followed Trump into a thicket of lawlessness, authoritarianism, violence, and chaos. Its authors thereby vividly illustrate how far Republicans have come in abandoning liberty, limited government, judicial restraint, and fair play.”
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CASE TIMELINE
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>> DECEMBER 1, 2023: District Court Judge Tanya Chutkan rules that former President Trump is not immune from prosecution in the election subversion case brought by Special Counsel Jack Smith in August. Former President Trump appeals the decision, which is expedited by the D.C. Circuit Court of Appeals.
>> DECEMBER 22, 2023: Smith separately requests the Supreme Court take direct jurisdiction over the appeal and bypass the Circuit Court of Appeals. On December 22, the Supreme Court declines Smith’s request, leaving the appeal in the D.C. Circuit Court.
>> DECEMBER 23, 2023: The Trump legal team files a brief asking the Appeals Court to throw out the case, arguing that Trump is protected under presidential immunity.
>> JANUARY 9, 2024: Oral argument in the case is scheduled to be heard by the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday, January 9, 2024.
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ADDITIONAL RESOURCES & BACKGROUND
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Amicus Brief of Former Government Officials and Constitutional Lawyers.
Per-Curiam Order, United States v. Donald J. Trump.
The New York Times, Trump’s Most Ambitious Argument in His Bid for ‘Absolute Immunity’, Adam Liptak. (1/1/24)
The Washington Post, Want to know how real conservatives think? Read their brief on immunity, Jennifer Rubin. (1/2/24)
Trump’s Frivolous Immunity Claim, Democracy 21 President Fred Wertheimer. (1/4/24)
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