In Bid for Immunity, Trump Distorts the History of His Second Impeachment

On the day the Senate voted to acquit Donald Trump in February 2021, the Senate Minority Leader Mitch McConnell stood up to explain why 43 Republicans, including himself, voted to let Trump off the hook for trying to violently overturn the 2020 election results. Doing so required some careful sidestepping by McConnell, especially given that he agreed with the basic facts presented by the House impeachment managers. McConnell acknowledged that there was “no question that President Trump is practically and morally responsible for provoking the events” of the deadly riot that unfolded on Jan. 6, and that Trump’s feeding of “wild falsehoods” was a “disgraceful dereliction of duty.”

But McConnell explained that he and all but seven of the chamber’s Republican senators had decided that because their vote was coming after Trump had left the White House, there were more appropriate legal avenues where he could be held accountable for his actions as President. “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one,” McConnell said.

McConnell was echoing a legal argument that Trump’s own lawyer, David Schoen, had made to the Senate just days before. “We have a judicial process in this country; we have an investigative process in this country to which no former officeholder is immune,” Schoen said.

Now Trump’s trying to get the courts to forget all that. 

Trump appeared in a D.C. appeals court on Tuesday as his lawyers tried to convince a seemingly skeptical panel of three judges that Trump has broad Presidential immunity from criminal prosecution precisely because the Senate never voted to convict him. Even though Trump’s own impeachment lawyer and McConnell had used the exact opposite reasoning—that Trump could still be held accountable by the courts for his actions as President—as Trump’s Get-Out-of-Jail-Free card three years earlier.

Trump didn’t have to appear in court for the hearing on Tuesday, but decided to travel to Washington anyway, even though the Iowa Republican caucuses are less than a week away. The former President spoke to reporters at the nearby Waldorf Astoria after the hearing “I think they feel this is the way they’re going to try and win, and that’s not the way it goes,” Trump said, according to The Washington Post. “It’ll be bedlam in the country. It’s a very bad thing. It’s a very bad precedent.”

Trump is appealing a lower court decision that found he doesn’t have presidential immunity in the criminal case brought by Special Counsel Jack Smith over Trump’s actions leading up to the Jan. 6 storming of the Capitol. In that case, U.S. District Judge Tanya Chutkan ruled that “former presidents enjoy no special conditions on their federal criminal liability” and that Trump “may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

The Supreme Court in December declined a request by Special Counsel Jack Smith to immediately rule on whether Trump has immunity from prosecution for actions taken while he was President, leaving it for the lower court to decide first. 

Inside the courthouse, the appeals court judges peppered Trump’s legal team with questions about previous assertions made by lawyers representing Trump that the former President could, as a private citizen, be prosecuted for his actions in office. "The argument was there's no need to vote for impeachment because we have this back stop which is criminal prosecution and it seems that many senators relied on that in voting to acquit,” Judge Florence Y. Pan, who was appointed by President Joe Biden, told Trump’s legal team. One of Trump’s lawyer, D. John Sauer, said that the court shouldn’t speculate about what motivated senators in the impeachment process.

In another exchange, Judge Pan offered Sauer a hypothetical: if a President ordered SEAL Team 6 to assassinate a political rival but wasn’t impeached or convicted for it by Congress, could that President ever face criminal prosecution? Sauer wouldn’t answer the question directly, but said that the concept of Presidential immunity would apply.

Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush, thought that the legal argument being offered by Trump’s lawyers went too far. “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” she said.