Here’s the problem with Trump’s 'truly bonkers assertion' in immunity appeal: expert
As he continues to pursue delaying special counsel Jack Smith's election interference case against him, MSNBC Daily writer and editor Hayes Brown highlights the fact Donald "Trump all but requests the appeals court to rule that the judiciary has no power over anything he did while in office — to rule, in effect, that [Judge Tanya] Chutkan has it wrong: He does possess the divine right of kings, and as such, no other branch of government can touch him.'"
Brown is referring to Trump's lawyers' current focus on appealing Chutkan's ruling from earlier this month, rejecting the ex-president's claim that he's immune from prosecution, refusing to trash Smith's indictment against him.
The MSNBC Daily editor argues the Trump team's "immunity appeal argument is more dangerous than it seems."
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He writes, "The basis of this truly bonkers assertion is a favorite of Trump's, that the separation of powers safeguards him from any kind of oversight. In the past, his lawsuits and defenses have focused on the legislative branch’s attempts to hold him to account or (bizarrely) claiming that the Justice Department can’t breach executive privilege, despite both the president and DOJ being part of the executive branch. This time around there’s a novel focus on the reach of the judiciary itself to police the actions of the president."
Trump's lawyer's wrote, "Under the doctrine of separated powers, neither a federal nor a state prosecutor, nor a state or federal court, may sit in judgment over a President’s official acts, which are vested in the Presidency alone," emphasizing "that a president’s official acts aren’t 'examinable by the Judicial Branch,' a principle that extends back to the landmark 1803 Supreme Court case Marbury vs. Madison. Trump also contends that senior officials — like, for example, the president — shouldn’t face criminal charges from a 'possibly hostile judiciary.'"
Brown argues, "Both of those arguments are based on a set of very, very tenuous assumptions. First, the idea that the judicial branch can't touch him at all hinges precariously on the phrase 'official acts.' It's a broad phrase that, generally speaking, refers to actions taken by the president that involve enforcing duly passed laws. If President Joe Biden issues a policy related to the climate change provisions in the Inflation Reduction Act, for example, that's an official act that can't be the basis for civil or criminal charges against him."
The editor adds:
Trump's rejection of judicial authority also assumes that there’s a transitive property to what's known as the Speech and Debate Clause. In short, Article I, Section 6, of the Constitution provides that a member of Congress can't be arrested 'for any Speech or Debate in either House.' It's meant to be a protection against a rogue executive punishing legislators for making an argument while debating a draft law. You’ll note that there's no section of the Constitution that says anything similar about the president — or former presidents, for that matter.
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Brown emphasizes, "In citing cases involving legislative immunity and judicial immunity — which supposes that judges can't be charged for legitimate actions taken from the bench — his lawyers are attempting to create an equivalent prerogative for the presidency out of whole cloth. The closest they come is in citing a Supreme Court case in which a civil suit against former President Richard Nixon was thrown out. But again, those examples all rely on the actions in question being legitimate and not part of a self-serving conspiracy against the country."
Brown's full op-ed is available at this link.
