Trump’s Immunity Defense Crumbles

A three-judge appellate panel of the D.C. Circuit expressed deep skepticism about core parts of Trump’s immunity claim

Trump listens as his attorney D. John Sauer speaks before the D.C. Circuit Court of Appeals. Photo: Dana Verkouteren/AP

Trump was in court again yesterday, sitting in on a D.C. appellate court hearing over his most audacious claim yet: absolute presidential immunity.

Trump claims immunity from criminal prosecution over ANY act he committed while doing anything remotely “official” while he was president. And he really does mean ANY act, including blatantly criminal acts like selling pardons, passing nuclear secrets or taking out political enemies. 

Is that the kind of world we want to live in? The D.C. Court of Appeals doesn’t appear to think so, not even the Republican appointee on the panel, Karen Henderson, who is known for being rather deferential to presidential power. In fact, all three judges appeared highly skeptical of Trump’s sweeping claims of immunity, and they’re likely to smack them down.

Today I’ll walk through some of the key reasons Trump’s immunity argument is almost certain to fail. Then I’ll briefly discuss how the D.C. Circuit may grapple with how to craft its ruling, especially given the risk of significant delay. Finally, we’ll touch again on what happens next in the appeals process and how that will likely impact the trial date.

The panel didn’t buy Trump’s “Pandora’s Box” argument

Trump’s best argument for why presidents should enjoy absolute immunity from criminal prosecution is the imagined “Pandora’s Box” of harms that would result. Trump’s lawyer, former Missouri Solicitor General John Sauer, argued that if prosecutions were permitted, then President Obama could be charged for ordering drone strikes. President Biden could be indicted for allowing migrants across the border who then commit a crime. On and on. How could a president possibly perform his constitutional duties to faithfully execute the laws if he was always looking over shoulder, wondering if he would be charged criminally for it?

But even Judge Henderson, who was Trump’s best hope for a vote his way, wasn’t buying it. “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,” she said. 

And after all, people are charged with enforcing the law all the time and are expected not to commit crimes while doing so. In fact, we have four other living ex-presidents, none of whom were ever brought up on charges for criminal acts committed during their presidencies. Trump is unique for having committed so many crimes and having been charged with 91 different counts. And the one ex-president who faced possible criminal charges? He sought and received a pardon in recognition that he could be prosecuted.

Seen in this light, the opening of the floodgates for prosecutions against former presidents is a fantasy. It only makes sense if you have a very Trumpian worldview, where the possibility of rampant criminal behavior by the president runs high. 

In fact, the litany of evils runs the other way

Imagine the opposite outcome of the decision for a moment. If a president was absolutely immune from criminal prosecution, so long as he wasn’t impeached and convicted for it, then all manner of bad things would result.

Judge Florence Pan (who is my new hero and should be on any short list for SCOTUS) pinned Trump’s lawyer to the wall on this. She got him to concede that, under this reasoning, a president could give an “official” order to SEAL Team 6 to assassinate a political rival, and he couldn’t be prosecuted for it. 

A good judge will pose hypotheticals that, taken to their logical conclusion, will produce absurd results, indicating that the reasoning or the premise of the argument is faulty. That Sauer wound up in this untenable position and had to defend the right of the president to assassinate his political rivals, as long as it was part of an official order, was rather embarrassing. But it also reveals how Trump viewed his own presidential powers and how he intends to wield them to more terrifying effect should he be reelected.

But, but, the Judgment Impeachment Clause!

Sauer protested that his answer was only a qualified yes. A president who ordered SEAL team 6 to take out a political rival could still be prosecuted after leaving office, Sauer claimed, but only if he has been first impeached by the House and convicted by the Senate for those actions. He cited the Judgment Impeachment Clause of the Constitution to support this rather startling claim.

Before we discuss why the language of that clause doesn’t get Sauer where he needs to be, let’s review why the panelists believed this argument was full of holes. More hypotheticals from them quickly destroyed it: What if the president committed crimes then hid the actions and they weren’t discovered until after he left office? What if he resigned before he was impeached and convicted? And as MSNBC’s Chris Hayes pointed out, wouldn’t this rule mean any president who has the unwavering loyalty of at least 35 senators in his party could pretty much do whatever he wanted?

This can’t be the right answer. There is simply too much room for abuse.

Moreover, as Judge Pan pointed out, Trump’s attorney during his second impeachment trial actually argued the exact opposite. I wanted to find the exact moment, and rather amazingly, it was GOP Senator John Cornyn of Texas who provided it. He tweeted back in 2021 the grounds for why he would vote to acquit Trump, since he could be charged later anyway. He posted this exchange between himself and Trump’s lawyer at the time:

Senator Cornyn: The House managers have argued that if the Senate cannot convict former officers, then the Constitution creates a January exception. Pursuant to which a president is free to act with impunity because he is not subject to impeachment.

Response (Mr. Castor): There is no such thing as a January exception to impeachment. There is also the text of the Constitution which makes very clear that a former president is subject to criminal sanction after his presidency for any illegal acts he commits.

Thanks, Senator!

And wait. Didn’t you just admit that “absolute” immunity doesn’t exist?

Judge Pan wasn’t content just to pin Sauer down on hypotheticals. She also took his own argument and destroyed him with it.

After all, she pointed out, if Sauer’s position is that the president can be criminally prosecuted, but only after a successful impeachment and conviction by Congress, then this is the same as saying his claimed immunity is not, in fact, absolute. It is qualified. 

The question, then, isn’t whether a president can be criminally prosecuted, but when.

And if he is wrong about that single qualification under the Judgment Impeachment Clause (and he is), then the clause really is no bar to criminal prosecution. This means the president can be criminally prosecuted for acts committed while in office, whether or not he is successfully impeached. The Judgment Impeachment Clause is totally irrelevant.

Sauer did not have a good answer to this because there really isn’t one, except to lean even harder on the idea that the Judgment Impeachment Clause really does insert some kind of prerequisite for criminal prosecution. But the plain text reveals that it does no such thing. And in the absence of any absolute immunity, as Judge Pan said drily to Sauer, “All of your other arguments seem to fall away … if you concede a president can be prosecuted under some circumstances.”

Look for this reasoning to underscore the opinion upholding Judge Chutkan’s ruling.

Why the Judgment Impeachment Clause is a red herring

If the only thing Trump has to hang his hat on is the Judgment Impeachment Clause, it’s worth revisiting his argument to see why it’s so weak.

Trump claims the clause forecloses any criminal liability unless Congress successfully impeaches and convicts a president. Here’s what the clause actually says:

Judgment in Cases of Impeachment shall not extend further than to remove from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial Judgment and Punishment, according to Law.

It already takes a pretty tortured reading to conclude from the text of the clause that it somehow imposes some kind of additional bar on subsequent criminal prosecution. The word “nevertheless” doesn’t mean what Sauer wants it to mean, and Judge Chutkan demolished this fairly easily in her ruling.

My earlier summary on this question described how Judge Chutkan took apart the illogical argument at the heart of Trump’s claim:

After walking through Trump’s citations to the Federalist papers and finding they also support that plain reading of the words—i.e., that the clause is in no way a limitation on what charges might be brought in the event of no impeachment and conviction—Judge Chutkan serves up some common sense.

Here’s a fun logical teaser she uses:

From the statement, “if the animal is a cat, it can be a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.” 

This is a logical fallacy called “denying the antecedent,” and the judge had to explain it to Trump’s lawyers like they were twelve. 

Trump argues that because a president who gets impeached and convicted may be subject to criminal prosecution, somehow a president who is not convicted may not be subject to criminal prosecution. But that does not logically follow.

My guess is that the appellate panel will just as easily dispose of Trump’s Judgment Impeachment Clause argument, which leaves him precisely where Judge Pan indicated: without any kind of absolute presidential immunity and subject to the decisions of courts and juries.

Should the appellate court even be hearing this case right now?

The third panelist, Judge J. Michelle Childs, took up an interesting point raised in one of the amicus briefs: whether Trump’s appeal of this question was premature. After all, there is Supreme Court precedent that says that an “interlocutory” appeal—meaning, one before final judgment—is only proper if the grounds for it are spelled out clearly, which doesn’t apply to Trump’s claim for immunity. But both the government’s and Trump’s lawyers seemed to concede that jurisdiction is proper and that the Court ought to decide it now. So this isn’t likely to be the argument the panel goes with entirely.

It’s possible that the court will write an “in the alternative” style opinion, finding that the appeal was premature but weighing in on the merits anyway in case the Supreme Court disagrees. We’ll have to see how that goes.

What happens next?

With the panel likely to rule against Trump, the clock is ticking. If it comes out with an opinion quickly, that starts the clock on any appeal before the entire circuit or up to the Supreme Court. The panel could truncate that time period, in theory, by agreeing to stay the case by, say, only a couple of weeks—long enough for Trump to file his appeal.

The big question is what SCOTUS does next. If it sits on the question of whether to hear the case, it will push the trial date back for at least as long as it takes no action. The government likely will request expedited review, but it’s really up to the justices to agree.

I do believe a majority of the justices would want to see the matter of Trump’s criminal charges in D.C. resolved before the election. Voters should have a right to know whether they are casting ballots for a convicted criminal or not. The best way for the Supreme Court to ensure this is to simply deny review when Trump asks for it. The second best is to grant review but hear the matter quickly.

If ever there was a case in our politics of “justice delayed is justice denied,” this is it. Let’s hope the Supreme Court sees it that way, too.