Trump’s January 6th 'executive privilege' defense is 'spurious' and 'should lose': columnist

02 September 2023

Former President Donald Trump's attorney John Lauro's "impassioned" attempt to delay Trump's federal January 6th trial as well as his argument that Judge Tanya Chutkan of the District Court for the District of Columbia lacks "jurisdiction" to preside over the proceedings are "setting up a constitutional showdown that will likely wind up before" the United States Supreme Court — and "should lose," The Bulwark's Kimberly Wehle explains.

Justice Department special counsel Jack Smith's prosecution of Trump for allegedly conspiring to steal the 2020 election (which he lost), remain in power, and deprive American citizens of their right to vote will commence on March 4th, 2024. Lauro, in his defense of Trump, maintains that his client is facing persecution for merely "being President Trump and faithfully executing the laws and executing on his 'take care' obligations" and that "we're going to have a very, very unique and extensive motion that deals with executive immunity."

But as Wehle explains, "There is no single dividing line between permissible and impermissible presidential actions under prior Supreme Court precedent, although one would hope that even the current right-leaning Court would draw it at the commission of crimes under the mantle of, and using the enormous powers of, the office. The ability to undertake a criminal enterprise with impunity cannot be part and parcel of the powers of the presidency."

POLL: Should Trump be allowed to hold office again?

Wehle continues, "To the extent Lauro is linking immunity with the concept of 'jurisdiction,' however, he is either mistaken or holding another potential legal arrow behind his back—what's known as the 'political question doctrine.' In legal terms, jurisdiction refers to the core power of a court. Federal courts, for example, only have the constitutional power to hear cases involving federal issues or those involving parties from different states and a lot of money."

Consequently, Wehle notes, "A case under the United States criminal code squarely raises a federal question that gives Chutkan jurisdiction. If Trump is found to be immune from criminal liability for some or all of the conduct giving rise to the January 6th indictment, it's because the facts are insufficient for a conviction—not because there's no jurisdiction."

According to Wehle, the "political question doctrine... could theoretically be used to challenge the appropriateness of employing the power of the federal courts as opposed to that of the other two branches of the federal government." But this leads to the "spurious" assertion that "Trump's efforts to wrest the 2020 presidential election from Joe Biden amount to a political question that the voters must decide in 2024. If voters respond to the political question by re-electing Trump instead of rejecting him, the only other available mode of redress would be for Congress to impeach him during his second term."

Wehle recalls that the aforementioned scenario already took place when, after Trump was impeached for inciting the Capitol insurrection, Senate Republicans "refused to convict him on an alleged legal technicality having to do with the timing of his leaving office."

Wehle further points out that Senate Minority Mitch McConnell (R-Kentucky) stated following Trump's acquittal that "former presidents are not immune from being held accountable" by the courts. Therefore, Wehle adds, "If Lauro does raise the political question doctrine in a bid to dismiss the January 6th indictment, he should lose. As with executive privilege and presidential immunity, this legal framework is reserved for legitimate exercises of government power, not criminal ones."

Wehle thusly concludes her piece with a thought experiment about Trump's case landing before the right-wing Supreme Court, positing, "If the fate of Donald Trump and the final chapter of the January 6th nightmare cannot rest in the hands of unelected justices with life tenure—who should decide it?"

View Wehle's full column at this link.

From Your Site Articles