‘Trump Has Taken Presidential Immunity to Its Illogical Extreme’

David A. Graham, writing at The Atlantic:

In a hearing before the D.C. Circuit Court, the former president’s lawyers argued that he should be immune from criminal prosecution for his role in the attempt to steal the 2020 presidential election. This argument has an obvious flaw: It implies that the president is above the law. Such a blunt rejection of the Constitution and the basic concept of American democracy is too much even for Trump to assert — publicly, at least — so his lawyers have proposed a theory. They say that he can’t be criminally prosecuted unless he is first impeached and convicted by Congress.

This argument is no less dangerous, as a hypothetical asked in court demonstrated in chilling terms. Judge Florence Pan asked Trump’s attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. Sauer tried to hem and haw his way through an answer but ultimately stated that such a president couldn’t be prosecuted unless he was first impeached, convicted, and removed by Congress.

“But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan pressed. Sauer had no choice but to agree, because acknowledging any exceptions would have blown a hole in his argument.

The most forgiving take on this argument is that Trump’s legal team doesn’t mean it, and they’re merely stalling for time — throwing as much shit as possible up against the appeals court walls, hoping to delay his umpteen trials until after his possible reelection in a year. But Trump himself clearly means it. (Barry Blitt’s cover illustration for The New Yorker this week is sublime.)

The best refutation of Trump’s argument that presidents are above the law, and accountable only to Congressional impeachment, comes from Representative Jamie Raskin, who points to the glaring game theory hole in this absurd argument: if it were true, the president could order the assassination of any congressperson who threatened to impeach or convict him. As Raskin concluded, “This is the GOP 2024.”

★ Thursday, 11 January 2024