Trump’s immunity argument highlights the absurdity of his position

Donald Trump didn’t have a strong chance of winning his immunity claim heading into oral arguments Tuesday in Washington, and the argument itself showed why.

Part of the former president’s position is that, to be criminally prosecuted, he needed to have first been convicted by the Senate in his insurrection impeachment trial, but that, because he was acquitted, he therefore can’t be prosecuted now in his federal election interference case.

The argument doesn’t make sense on its face, but its implications were made more dire during the hearing at the U.S. Court of Appeals for the D.C. Circuit. Judge Florence Pan pointed out that, under Trump’s theory, a president could order SEAL Team Six to murder the president’s political rivals and, so long as they’re not convicted in an impeachment trial, they’re off the hook. Justice Department lawyer James Pearce similarly observed on behalf of the special counsel that, under Trump’s theory, a president could simply resign to avoid criminal consequence.

Pearce warned of a “frightening future” if Trump’s legal position is correct.

All three judges on the panel expressed skepticism of Trump’s argument, suggesting the possibility of a unanimous ruling against him. Of course, in the likely event that Trump loses at this stage of the litigation, he will further appeal. Mindful of that possibility, Trump lawyer John Sauer asked the panel to pause any decision against the former president from taking effect while he challenges it on higher appeal.

So we’re expecting a Trump loss and then a Trump appeal. The question now is when this panel ruling will come and what sort of timetable it puts on the former president in his attempt to further delay — and ideally, in his view, quash — the scheduled March trial.

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Jordan Rubin

Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro,” a book about the secret war on synthetic drugs. Before he joined MSNBC, he was a legal reporter for Bloomberg Law.

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