But it might work anyway…
The idea that former President Donald Trump was performing his official duties when he told his supporters to march to the Capitol and “fight like hell” and then sat in his dining room watching them storm the building and refusing to do anything to quell the riot has always seemed to be a stretch. After he lost 60 of 61 court cases in which he tried to overturn the results of the election that he continued to exhort the top officials in the Justice Department to lie and say they had evidence of fraud hardly seems like a presidential duty either. And all the calls to local officials asking them “find” enough votes to change the outcome of their election wouldn’t normally be considered the job of a president. American elections, for better or worse, are processed by state and local authorities.
Nonetheless, Donald Trump’s lawyers had filed an appeal in the US District court arguing that everything he did in the post election period were part of Donald Trump’s official duties as President and therefore he should be given immunity for all of it which is ridiculous. But even more ridiculous, his lawyers didn’t really end up addressing that claim that in oral arguments before the court on Tuesday, instead focusing on a truly fatuous assertion that unless a president has been impeached and convicted by the US Congress he cannot be prosecuted for anything that happened during his term in office. This naturally led to some very unusual questioning by the judges:
I think even smart elementary school kids could see the holes in that argument. What if a president just resigned before the impeachment so that he would be immune from prosecution for his heinous acts? What if he decided to have enough members of the Senate killed as well so they couldn’t get to the two thirds majority required for conviction? Once you start handing out immunity from crimes unless they follow the very weak political process of impeachment you’ve pretty much said all bets are off and the president of the United States has a license to kill.
Basically Trump’s lawyer seemed to get backed into this ridiculous argument and couldn’t figure out how to get out of it. All he had to do was say that ordering a hit on a political opponent could never be part of a president’s official duties so such an act would not qualify for immunity. But then that would have brought the argument back to the also terrible but not completely embarrassing grounds on which they had originally wanted to make it — the absurd notion that Trump’s attempts to overturn the election were part of his official duties.
That original argument didn’t hold much water anyway. Judge Karen L. Henderson, appointed by George H.W. Bush, wasn’t impressed with the argument that Trump attempted to overturn the fully adjudicated, legal election because it is his constitutional duty to ensure that election laws are upheld. As she said, “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate the criminal law.”
The original standard they are sort of basing this on was developed by the DOJ’s Office of Legal counsel to ensure that a president could not be criminally prosecuted while he was in office and over and over again as this has come up in various investigations and earlier impeachments, parties on all sides made it clear that any president who breaks the law could be prosecuted after his term was over. Why else would Gerald Ford have pardoned Richard Nixon or would Bill Clinton have entered into a plea agreement with the Office of Special Counsel when he left office? Did none of the lawyers involved have the Trump team’s sophisticated understanding of the US Constitution? Unlikely in the extreme.
Trump attended the arguments in person even though he didn’t need to. I suspect it’s partly because he thinks that glowering at the judges in his cases intimidates them. According to news reports he sat emotionless most of the time but scribbled what were likely instructions when the prosecution was speaking. He seemed very pleased when his lawyer made the irrelevant, political arguments that Trump is winning in all the polls, which is also a lie.
Trump also just likes to be a part of the story so he can pound home to his followers that he is being persecuted for their crimes. But it didn’t work out so well for his this time. The court house required him to enter in the back and there were no cameras in the hallways or out front so he had to retreat to the Waldorf Astoria Hotel to hold his little post-hearing press briefing. He expressed his firm conviction that “as president you have to have immunity, very simple” and said that there would be “bedlam” if the courts didn’t buy his argument, obviously signaling his flock to stand back and stand by. He concluded with this:
We’ll probably get the District Court opinion quite soon and then it will be on to the Supremes for Trump’s appeal, should they decide to accept it. In the meantime, there will be plenty of Trump Trial action in the next few days. The second E. Jean Carroll defamation case begins next week (in which, incidentally, the US Appeals Court from the 2nd circuit refused to rehear Trump’s earlier “immunity” argument on Monday.) And closing arguments in his fraud trial are scheduled for Thursday. Trump announced that he will be giving the closing arguments himself in that case, ostensibly because he knows the case better than anyone. I assume he got his law degree from Trump University.
As we watch these legal cases really start to take off it’s both reassuring that it seems as though rational people are in charge of the proceedings and nerve wracking considering that Trump’s main strategy — to delay the process as long as possible — may end up working simply because the judicial system is not built for speed. He’ll try to wrap up the primaries as early as possible and officially become the presumptive nominee and then claim that the political process must supersede the legal process until the election is over.
He doesn’t care if his lawyers make fools of themselves in court just as long he can push off the trial date as long as possible. In that sense reason may be winning the battles at every turn, just as they did with the election cases in 2020. But Trump could end up winning the war.