Republished with permission from Lucian K. Truscott IV

There is exactly one week until the Circuit Court of Appeals for the District of Columbia hears oral arguments on the claim by Donald Trump that he has absolute immunity against prosecution for crimes committed while in office. 

The Trump legal team, led by D. John Sauer, filed an appeal of Judge Tanya Chutkan’s ruling in early December that rejected Trump’s claims of immunity against the federal charges brought in Washington D.C. by Special Counsel Jack Smith. In an order rejecting that claim, Chutkan ruled that Trump was “subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.” Trump’s appeal made the case that he had absolute immunity from prosecution essentially because charging a president or former president with a crime had never happened before.

Sauer went on to say that despite the fact that there are no words in the Constitution giving a president or former president absolute immunity, the D.C. Circuit should find that Trump is immune from prosecution because a president, or former president, has to be protected from his political enemies. There it is: the “political prosecution” argument Trump makes every time he opens his mouth, that President Biden has “weaponized” the Department of Justice and the judicial system against him.

Here’s where the thesaurus may be useful: how many words can the D.C. Circuit find for, are you kidding? Judge Chutkan, in her denial of Trump’s immunity claim, famously reminded the former president that “America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time,” and that having been president “does not confer a lifelong ‘get-out-of-jail-free’ pass.” She went further, ruling that Trump’s “four-year service as commander in chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

The office of the Special Counsel answered Trump’s claim by taking direct aim at his argument that he should enjoy absolute immunity because of the possibility that he might be charged with actions he took in the carrying out of his duties as president. Deputy Special Counsel James I. Pearce told the D.C. Circuit, “The presidency plays a vital role in our constitutional system, but so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process. A scheme to thwart the peaceful transfer of power contradicts the most basic constitutional check on executive abuses. A president comes to power by winning an election, not by subverting the results of the vote,” Pearce wrote. “Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license presidents to commit crimes to remain in office. The founders did not intend and would never have countenanced such a result.”

Trump’s appeal also makes a kind of throw-it-against-the-wall-and-see-if-it-sticks argument that prosecuting a former president violates the separation of powers clause in the Constitution by empowering the Judiciary impermissibly over the Executive. The Special Counsel’s brief acknowledges that the Constitution gives the three branches separate but equal powers, but contends that “The defendant nevertheless advances the broad argument (Br.9-12) that the separation of powers mandates immunity from any judicial review of a President’s official acts…The President’s duties, however, do not operate in a realm without law.”

An amicus brief filed by sixteen conservative former Republicans, including Bill Kristol, a former chief of staff to Vice President Dan Quayle, and Ty Cobb, Trump’s former lawyer, addressed the separation of powers issue by noting that the power vested in the Executive by the Constitution to “take care that the laws be faithfully executed” applies to the current president as completely as it applied to Trump when he was in office. That would include, the conservative lawyers told the D.C. Circuit, the ability of the current president, Joe Biden, to insure that the laws regarding the Constitutional duty of the Congress to count and certify the votes of the Electoral College are not violated by, say, a president seeking to subvert those laws by attempting to remain illegally in office despite the fact that he lost the election.

Reading the brief by the Special Counsel is almost painful because the whole thing is essentially an exercise in stating the obvious. To say at the outset that there is no provision in the Constitution conferring immunity from prosecution on a president is like telling the D.C. Circuit, can’t Trump and his lawyers even read? Similarly, the plain text of the impeachment clause, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors,” neither states nor implies that a president, or any other “officer” of the government cannot be prosecuted for those same crimes for which he or she is impeached. Trump makes the spurious claim that the federal indictment he faces for attempting to overturn the 2020 election amounts to double jeopardy. 

The Special Counsel runs through a long list of court cases that shred Trump’s claim, including historical citations that include a speech made by a senator in the first impeachment trial ever held by the Senate in 1798, who said that a conviction by impeachment “has no connexion [sic] with punishment or crime, as, whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a prosecution at common law.” Which would seem to apply in the case of Donald Trump with surprising specificity.

The brief by the Special Counsel reaches back repeatedly to the Federalist Papers to make clear the intentions of the founders when it came to what they meant by the political nature of the remedy of impeachment. “Impeachment provides Congress with a political check on the Executive Branch to address through removal the ‘misconduct of public men’ for ‘injuries done immediately to the society itself.’ Federalist No. 65, at 364.”

The fact that the Special Counsel repeatedly quotes speeches by the founders and the Federalist Papers points to the unusual nature of the Trump case. There are no Supreme Court decisions which directly address the prosecution of a president or former president because it’s never happened before. In Watergate, we came close to both impeachment and prosecution of Richard Nixon, but he dodged both bullets by resigning. 

But President Gerald Ford’s pardon of Nixon after he left office provides us with at least one Supreme Court case that answers a question not asked in Trump’s appeal, nor answered in Smith’s Circuit Court brief: In 1915, in the case Burdick v. United States, the Supreme court found that acceptance of a pardon carries with it “an imputation of guilt and acceptance of a confession of it.”

With Nikki Haley the latest Republican candidate for president to say that she would pardon Donald Trump if elected president, perhaps he would do better appealing not to the D.C. Circuit but to his fellow Republicans, all of whom seem to have accepted his guilt as a given and promised to absolve him of it.