Trump Lawyers Run Out Of Bad Arguments, Move On To Terrible Ones In Immunity Appeal
That is some sparkling bullshit.
(Photo by Jabin Botsford/The Washington Post via Getty Images)
Last night, Donald Trump’s lawyers submitted their reply brief in support of Trump’s right to dismiss his election interference case on grounds of presidential immunity. It is beyond bonkers.
Clearly attorneys John Sauer, John Lauro, and Todd Blanche have run out of merely bad ideas. They have drilled through the bottom of the barrel into a subterranean underworld of batshittery. Just six days before they make their case to the DC Circuit, they have been reduced to pointing to arguments which undermine their case and gamely insisting that that they do the exact opposite.
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Take for instance their repeated reliance on a 2009 Minnesota Law Review article by then-Judge Brett Kavanaugh. Although he previously helped Ken Starr write his infamous report on Bill Clinton, Kavanaugh had recently undergone a change of heart. With hindsight, he decided that Congress should “consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel.”
Kavanaugh’s premise is that a sitting president is not immune from criminal prosecution, but that he should be. Why else would Congress need to change the law? Nevertheless, Sauer, Lauro, and Blanche cite this article in support of the proposition that Trump, who is not a sitting president, is somehow entitled to immunity under the law.
Trump’s lawyers continued to suck up to the Court’s median justice, citing Kavanaugh’s concurrence in Trump v. Vance in support of the proposition that “a court may not proceed against a President as it would against an ordinary litigant.” Because it’s fun to pretend that Donald Trump is still the president with all the concomitant perks, and so his lawyers keep up the pretense throughout the brief.
They go on to cite language from a 1999 DC Circuit ruling that “a trial court’s order denying a President’s claim of separation-of-powers immunity from civil actions during his term of office falls within the collateral order doctrine: the right asserted would be irretrievably lost if there could be no immediate appeal.”
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Of course Trump’s term of office ended three years ago, and this is not a civil action. Moreover, the DC Circuit denied former HUD Secretary Henry Cisneros’s bid for an interlocutory appeal in that 1999 opinion — exactly the opposite of what Trump’s lawyers want the court to do for their client.
In fact, this brief is stuffed with more athletic leaps of logic than the Bolshoi Ballet.
Trump claims that his impeachment for incitement means that jeopardy attaches, and thus he can’t be prosecuted for obstructing Congress. As the government notes, impeachment is explicitly not a criminal process, and sanctions under Article I, § 3 are confined to “removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” But, Trump counters, under English common law, impeachment could result in the death penalty, and ipso facto, impeachment by the US Congress is actually a criminal process.
Yes, for real.
Impeachment was adapted from the English process, which was criminal and included removal and disqualification along with imprisonment and death as punishments. That suggests removal and disqualification are criminal punishments.
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This directly undercuts Trump’s other argument that he can only be criminally liable after impeachment in the House and conviction by the Senate, but anyone looking for logical consistency in a Trump legal brief is going to be sadly disappointed.
This fakakta document even goes so far as to argue that Ford pardoned Nixon because he didn’t think the federal judiciary had jurisdiction to try him. Well … almost. His lawyers couldn’t quite bring themselves to say that, so instead they claimed that Ford did it because he believed that Nixon “could not fairly proceed” in federal court:
The government relies on President Ford’s pardon of President Nixon, but that pardon applied to private conduct. In any event, like the Founders, President Ford emphasized the divisive nature of a prosecution of the former President. He stated that, “[a]fter years of bitter controversy and divisive national debate, … many months and perhaps more years will have to pass before Richard Nixon could hope to obtain a fair trial by jury in any jurisdiction of the United States.” President Ford determined that “ugly passions would again be aroused, our people would again be polarized in their opinions, and the credibility of our free institutions of government would again be challenged.” He concluded that the criminal prosecution of the President would “prolong the bad dreams that continue to reopen a chapter that is closed.” President Ford thus made the same judgment that the Founders made: The criminal prosecution of a former President should not, and could not fairly, proceed in Article III courts. [Internal citations omitted.]
Of course, Ford’s statements are an explicit concession that courts did have jurisdiction over Nixon, but that it would be bad for the country to criminally prosecute a former president. Nonetheless, Trump’s lawyers confidently cite it as proof of exactly the opposite.
And speaking of misplaced confidence …
In their brief, Trump’s lawyers actually cite this social media post and the “Report that is fully verified” as proof that the “vigorous disputes and questions about the actual outcome of the 2020 Presidential election” were “based on extensive information about widespread fraud and irregularities in the 2020 election. In fact, the “Report” is a regurgitation of debunked claims of swing state fraud, citing such dubious sources as The Gateway Pundit, random internet videos, and a ‘Report on Widespread Fraud in the Georgia 2020 Presidential Election,’ which may or may not exist — it’s not linked to in this supposedly “verified” document.
Perhaps mindful that attorneys pushing debunked election claims in court have faced sanctions, Trump’s lawyers refer to the documents as “published analysis reporting that ‘investigations across the country have uncovered an avalanche of irregularities, unlawful activity, manipulation of election records, destruction of evidence, and fraud’ in the 2020 election.” And they caveat that “absolute immunity would apply” even if these claims were false, since Trump was “carrying out his duties as Chief Executive to investigate the overwhelming reports of widespread election fraud.” No citation for that one, either!
In short, this document is bananas. There are no good arguments here, and so Trump’s lawyers are coming up with new and creative bad ones. Let’s see if they’re crazy enough to try this shit on Tuesday with the DC Circuit.
US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.
