Analysis by Zachary B. Wolf, CNN
(CNN) — Former President Donald Trump has long argued that his supporters are so committed that he could stand in the middle of Fifth Avenue in New York City, shoot someone and not lose them.
One of his lawyers made the argument in federal court Tuesday that he might not be prosecuted either.
The question at hand is whether Trump and all presidents achieve “absolute immunity” from prosecution. Trump faces four different criminal prosecutions, and his strategy, beyond delaying these trials, is to argue that as a guard against political prosecutions he simply cannot be prosecuted.
Trump’s first criminal prosecution by the federal government for 2020 election interference has been put on hold, for now, while these immunity questions work their way through the appeals process.
With Trump looking on in federal court in Washington, DC, Tuesday, his lawyer was given hypotheticals by Judge Florence Pan, a nominee of President Joe Biden and one of three judges hearing the appeal.
Would a president face prosecution for selling pardons or state secrets? No, Trump’s lawyer John Sauer said, so long as he was not impeached and convicted first.
A hypothetical assassination
Then, Pan went a step further.
“Could a president order SEAL Team 6 to assassinate a political rival? That is an official act – an order to SEAL Team 6,” Pan said.
Not necessarily, according to Sauer.
“He would have to be, and would speedily be, impeached and convicted before the criminal prosecution,” Sauer said, suggesting that adding this extra layer before a president could face criminal accountability is essential to protect democracy.
“In these exceptional cases … you’d expect a speedy impeachment and conviction,” Sauer said during a back-and-forth with Pan. “But what the founders are much more worried about … was what James Madison calls in Federalist No. 47 the ‘new-fangled and artificial treasons.’”
It was actually, as far as I can tell, Federalist No. 43 in which Madison said, “new-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other.”
Pan, along with the other two judges, seemed extremely suspect of the idea that Trump has such blanket immunity. Pan also noted that Sauer himself was allowing for exceptions to immunity in cases where an impeachment and conviction in the House and Senate have occurred.
Trump avoided impeachment conviction because of possible prosecution
The larger problem with assuming impeachment and conviction are prerequisites for criminal prosecution is the recent history of Trump’s impeachments.
Sen. Mitch McConnell, the Kentucky Republican who was then Senate majority leader, voted to acquit Trump in a Senate impeachment trial immediately after the January 6, 2021, insurrection because, McConnell said, Trump should face criminal prosecution.
“We have a criminal justice system in this country,” McConnell said at the time. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”
Trump and his attorneys clearly think otherwise, and they don’t mind the circular argument. His supporters argued he shouldn’t face impeachment. Now they argue he shouldn’t face prosecution. There is no ideological through line but simply the most convenient argument to benefit Trump at a particular moment in time.
Trump later argued in a social media post that without such blanket immunity, Biden could be prosecuted for his handling of the situation at the US-Mexico border. It’s a difficult argument to make since Trump is being prosecuted for his efforts to overturn an election and stay in power rather than his efforts to conduct business as president.
Asked about Trump’s immunity argument on Capitol Hill Tuesday, McConnell said he stands by his criticism of Trump after the January 6 attack, but he would not say if he thinks presidents should get superimmunity.
“Well, my view of the presidential race is that I choose not to get involved and comment about any of the people running for the Republican nomination,” he said.
Haley rises in New Hampshire
While Trump faces real legal peril, the perception of persecution that he has fostered and pushed has not hurt him politically.
He remains the odds-on favorite to win the Republican Party’s presidential nomination, although in New Hampshire a new CNN poll out Tuesday suggests former South Carolina Gov. Nikki Haley has narrowed Trump’s lead to less than 10 percentage points.
Haley’s rise appears to be fueled not by the GOP base but independent voters who can take part in New Hampshire’s primary.
From CNN’s Ariel Edwards-Levy: “Haley’s support has grown dramatically among those voters registered as undeclared, New Hampshire’s term for independent registrants – she’s up 18 points with this group since November. It has also grown 20 points among those who are ideologically moderate.”
Perhaps his front-runner status is why rather than spend time with voters in Iowa or New Hampshire on Tuesday, Trump was in Washington, watching oral arguments in his absolute immunity appeal.
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