'Presidents are not immune': Appeals court corners Trump lawyers using GOP senators’ words

09 January 2024

Former President Donald Trump may have backed himself into a corner with the legal arguments he made on Tuesday, according to two prominent legal experts.

On Tuesday, Trump's lawyers argued before a DC Circuit Court of Appeals panel that their client should be free from any criminal prosecution from actions he took while he was president of the United States — even if he hypothetically acted to assassinate a political opponent — unless he was impeached by the House of Representatives and convicted by the US Senate.

CNN's Manu Raju asked Columbia law school lecturer Jennifer Rogers and former federal prosecutor Shan Wu to weigh in, and both were skeptical that Trump's argument would hold water under the scrutiny of the nation's second-highest court.

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In the segment, Raju played audio from Tuesday's oral arguments, in which a three-judge panel consisting of two Biden appointees — Michelle Childs and Florence Pan — and George H.W. Bush appointee Karen Henderson grilled Trump attorney John Sauer. The judges reminded Sauer that at the time of Trump's second impeachment related to the January 6 insurrection, virtually no Republican senators believed Trump could escape accountability in the courts.

"He was president at the time, and his position was that no former officeholder is immune, and in fact, the argument was, 'there's no need to vote in favor of impeachment because we have this backstop that is criminal prosecution,' and it seems that many senators relied on that in voting to acquit," one of the judges said.

"That relies on speculation," Sauer said. "The court, I think, lacks the ability to intuit... senators' votes in an impeachment process."

At that point, Raju interjected, saying, "Aha! But good thing we have tape," and proceeded to play a clip from Senate Minority Leader Mitch McConnell (R-Kentucky) explaining his vote to acquit Trump was based on the assumption that the former president would have to defend himself in court.

"This underscores that impeachment was never meant to be the final forum for American justice," McConnell said in February of 2021. "We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one."

Rodgers agreed, saying that "impeachment is a political process" separate from the legal process.

"It's a political thing. So that really, to me, is what the court is thinking about. They're just thinking, that's a separate thing, double jeopardy is a legal issue, not a political issue, and we are going to decide what this clause means without thinking about that issue as he frames it," she said.

"When you look at what the judges were asking about today, they very clearly get the idea that if you argue for absolute broad presidential immunity, there's a lot of problems for the system when you do that," Shan Wu said. "I really don't think under that questioning that Trump's team was able to satisfy the court."

Watch the full segment below or by clicking this link.

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