Former President Donald Trump’s lawyers on Tuesday told the Supreme Court that if they do not grant him absolute immunity against prosecution for his effort to overturn the 2020 election it would “incapacitate every future president."
Trump’s lawyers outlined their arguments ahead of oral arguments scheduled for April 25 arguing that Trump should have full immunity for acts he took as president.
"The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office," Trump’s team said in the brief.
Failing to grant Trump immunity, they argued, would leave all future presidents vulnerable to “de facto blackmail and extortion while in office.”
U.S. District Judge Tanya Chutkan, who is overseeing Trump’s D.C. prosecution, and a D.C. appeals court previously rejected Trump’s immunity claims.
New York University Law Prof. Ryan Goodman noted that Trump’s brief quoted Supreme Court Justice Brett Kavanaugh, whom he appointed, but misstated what he had written.
Trump’s brief cited an old law review article in which Kavanaugh wrote that “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
But Kavanaugh in the Minnesota Law Review article the filing cited went on to write that that was not an argument against prosecuting a former president.
“The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office,” Kavanaugh wrote.
“Holy backfire,” Goodman tweeted, noting that Kavanaugh actually said that a “FORMER President is NOT immune.”
Goodman told CNN that it was a “good move” to quote the justices back to them but “the problem for Trump is that’s not really what Kavanaugh was saying.”
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“Kavanaugh was talking about why an incumbent president should not be distracted by ongoing criminal prosecutions or investigations… Kavanaugh I don’t think wants to be associated with this ‘absolute immunity’ argument that they’re making so it actually might turn him off.”
Trump’s lawyers in the brief also argued that Trump communicated with his vice president and other officials to urge them to exercise their official duties based on his view that the election was tainted by fraud.
CNN legal analyst Elie Honig said that it’s a “potentially legitimate” argument if Trump was acting within the scope of his duties but “the twisting of logic and reality that Trump has to do to get there, to get what he did within the scope of the presidency is facially ridiculous.”
Trump was asking his vice president and other officials to “violate their oaths of office. That's where I think he's going to run into trouble,” Honig said.
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The former prosecutor also pointed out that Trump’s lawyers “make the mistake of saddling a good, decent argument about whether he's in the scope or not with a ridiculous argument which is this impeachment argument, that he can only be indicted if he's been impeached and then convicted by the Senate."
"I don't know why they include that,” he said. “They don't need that. And to me, that sinks the arguments. So, if I'm advising Trump's legal team — which I'm not — but if I'm advising any normal person, I would say, 'leave out the lousy argument, just bank on the good one here.'"
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