Lawyers in criminal cases are usually advised to craft their arguments on the narrowest possible grounds when they appear before appellate courts. They will not make broad constitutional claims on behalf of their clients when narrower statutory or factual arguments will do the job just as well. It is a well-known rule that judges and justices prefer to rule on narrow grounds, and proceed to broader issues only when no alternatives are available.
For this reason, it is hard to understand why Donald Trump’s lawyers advanced the broadest possible argument for presidential immunity in their arguments this week before a three-judge panel on the D.C. circuit court of appeals. Trump is challenging Special Counsel Jack Smith’s indictment charging him with crimes in his final days in office in connection to his challenge of the 2020 presidential-election results. According to press reports, the judges were skeptical about Trump’s claims of immunity. It is not hard to see why.
Trump is claiming that presidents in office have total immunity from prosecution for anything they might say or do. This would extend to shooting someone on Pennsylvania Avenue or, as one judge suggested, directing a military team to assassinate a rival. Trump’s lawyers claim that a president, having committed such actions, would have to be impeached and convicted by congress before he might be prosecuted.
That might conceivably be true—though it is hard to see why Trump would raise those arguments. He did not shoot anyone, nor did he order anyone to be assassinated, nor did he do or say anything that in the ordinary course of events would be considered a crime. The charges against him are far narrower, and vulnerable to objection on their own grounds.
Nor is Trump any longer in office, so the question of impeachment and senatorial conviction is entirely irrelevant to his situation. His lawyers point out that the senate failed to convict him on similar charges after he left office, but several senators said at the time that they voted against conviction precisely because that process does not apply after presidents have already left office. The lawyers’ claim is thus unlikely to go anywhere. Even so, it is beside the point. The question here is whether Trump can be prosecuted after leaving office for something he said or did while in office.
Certainly, a president, after having been impeached and convicted in congress, could be prosecuted for shooting someone, or taking a bribe, or any number of other crimes. Courts are unlikely to grant immunity from prosecution to ex-presidents for acts of this nature. President Nixon remained vulnerable to charges of obstruction of justice even after his resignation until President Ford pardoned him. These are not hard questions: the president is no longer in office, and the acts charged are obviously unlawful.
Unfortunately, the issue of presidential immunity involves far more intricate issues that federal courts have never completely sorted out—and which bear upon Trump’s case. Can a president order the assassination of a suspected terrorist or the overthrow of a foreign government? Probably. What about ordering wiretaps on a political rival or someone running against him for the presidential office? Can a president direct the CIA or FBI to launch investigations of political opponents with the goal of embarrassing or discrediting them? Can a president lie to the public or to other officeholders for political or personal advantage? Can he direct others to lie on his behalf? Does a president have a right, in the interest of guaranteeing an accurate vote count and an honest election, to challenge the results of an election up to to the time where congress is counting electoral votes? A president might claim immunity for any or all of these acts.
We do not want every ex-president charged for things he did or thought he should do while in office. No one would wish to hold the office under those circumstances. On the other hand, we do not want to give presidents carte blanche to do anything or everything they might have power or license to do. That is where the courts come in: they are asked to draw those lines.
This particular indictment against Trump contains four counts: conspiracy to defraud the United States (lying about the election), conspiracy to obstruct an official proceeding (the certification of the electoral-college vote), attempt to obstruct of an official proceeding (the same), and conspiracy against the rights of voters (to have their ballots counted). Trump claims that his actions were undertaken in the process of carrying out lawful presidential duties, and is therefore immune from prosecution. He does not have to claim immunity for every conceivable act—only for the particular acts or statements alleged in the indictment. These charges are exceedingly vague, and a couple of them (lying to the public and violating the right to vote, namely) are wholly unprecedented.
Special Counsel Smith knows that he merely has to get Trump into court in Washington, D.C., in order to win a conviction because the judge in the case is a left-wing Democrat and all of the jurors are likely to be Democrats as well: they would vote to convict Trump of anything. Everyone, in addition, is aware that a conviction might cost Trump the election, and deliver it to President Biden or any other Democratic Party candidate. No one doubts that it is a political prosecution advanced on the basis of novel claims.
Trump has made this particular point many times over. The Supreme Court, if and when the case comes before it, is likely to take judicial notice of the far-reaching political implications of the trial. At the same time, those justices are unlikely to buy Trump’s claim of total presidential immunity. Whether this overly broad claim will bring down his entire case is a good question.
In any event, Trump’s attorneys would be well advised to narrow their immunity arguments to level of the particular charges against him. The circuit court will rule against him: it is a Democrat-leaning panel. The issues will be decided in the Supreme Court, where the justices may not wish to sort out every conceivable act that might bear upon presidential immunity. They will prefer to render a judgment on the narrow facts of Trump’s case—and so his lawyers would be wise to tailor their arguments accordingly.
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Source: newcriterion.com
