Trump's 'calculated risk' backfires after appeals court uses his allies' words against him
February 06, 2024
The Washington, D.C. Circuit Court of Appeals used Donald Trump's own words against him when they wrote pieces of the ruling in the presidential immunity case. But they also used the words of allies in the Senate and others.
Trump claimed that all presidents have absolute immunity against any prosecution for anything they did while in office on the grounds that every former president would face prosecution for presidential misdeeds the minute they left office.
In over 200 years, however, that hasn't happened. The closest the country came was when Richard Nixon was pardoned by Gerald Ford and when Bill Clinton made a plea deal to surrender his law license after lying under oath. Both cases were cited by the court as examples of presidents not being immune to criminal prosecution.
Speaking to MSNBC about the ruling on Tuesday, legal analyst Lisa Rubin pointed to the footnotes in the documents for some of the ways in which Trump's own people stuck their collective feet in their mouths.
READ MORE: Donald Trump loses appeal of his 'presidential immunity' from criminal prosecution for J6
"Trump made a calculated risky move here in his arguments," said Rubin. "He argued that a provision of the Constitution known as the Impeachment Judgment Clause was part of what protected him from prosecution. However, this court is saying, on page 41, the strongest evidence against his claim of immunity is that same clause, the Impeachment Judgment Clause, because it says that 'judgment in cases of impeachment shouldn't go further than essentially removing the person from office, but that if convicted the party nevertheless shall be liable and subject to indictment, trial judgment and punishment.'"
She said "nevertheless" is doing a lot of work in that case and the court found the word important.
That's when she pointed out the real-life examples of Trump's own allies.
"I note going through an opinion like this, one thing a lawyer like me does is look at the footnotes first," Rubin said. "You can learn as much from the footnotes as you do from the main text. Indeed, footnotes 12 and 13 on page 49 are really illustrative of their thinking."
"They also go through the second impeachment Senate debate in which 30 senators made statements in support of Trump on the floor saying that impeachment isn't an option for Trump because he's already out of office."
"They have a note where they say to the senators, by name, who made statements to that effect and count them up," said Rubin. "So, this D.C. Circuit is literally taking names with respect to the evidence that they cite."
"First and foremost, I don’t think this impeachment is proper under the Constitution. This is the first time the Senate has tried a former president. Whether or not it can do so is a difficult question," Sen. Chuck Grassley (R-I.A.) said in his speech. "The Constitution doesn’t say in black and white 'yes, the Senate can try a former president' or 'no, it can’t.' In contrast, many state constitutions at the time of the Founding specified that their legislatures could, so it’s notable that our federal charter did not. In order to answer this question it’s therefore necessary to look at the text, structure, and history of the Constitution. That’s what I have done. In the end I do not think we have the ability to try a former president."
Sen. John Cornyn (R-T.X.): "The arguments of the House Impeachment Managers that the Constitution permits the impeachment of a private citizen, the free speech protections of the First Amendment don’t apply, the due process clause of the Fifth Amendment is optional, and that the trial may include a presiding officer who also serves as a juror all were a bridge too far."
Sen. Tommy Tuberville (R-A.L.): “I had concerns with the lack of due process and constitutionality of this trial going in, and I voted twice to say so. But I had a duty as a juror to listen to the arguments of both sides and keep an open mind, which I did. After hearing the arguments presented, I voted to not convict for a number of reasons, including the fact that I don’t think the Senate has the authority to try a private citizen."
Those are just three of the 30 lawmakers.
Rubin read from the Appeals Court ruling "saying Trump has said that he can't be prosecuted, because he wasn't impeached and convicted." But, in this footnote, they say the history of the United States is replete with people who have been prosecuted for impeachment because, remember, impeachment is not just a solution for former presidents. It applies to people like Article 3, lifetime tenured judges and they cite a number of examples here that there have been hundreds of officers in the United States who have been subject to criminal proceedings for offenses for which they could have been impeached, but were not."
See Rubin's comments in the video below or at the link here.
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