With his "presidential immunity" claim on the line in the D.C. Court of Appeals, President Donald Trump is effectively trying to tell federal judges that they have no power whatsoever to review his conduct while he was in office, wrote Hayes Brown for MSNBC on Tuesday.
This comes after the Supreme Court rejected a request by special counsel Jack Smith to leapfrog the appeals court and decide the matter on an expedited basis, punting the question at least until that lower court decides, and possibly setting up a delay in the trial even in the likely event Trump is unsuccessful.
"Much of the brief Trump’s lawyers filed on Saturday is a rehash of the unfounded constitutional claims that [District Judge Tanya] Chutkan shot down," wrote Brown. "But among those well-trodden arguments, 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 Chutkan has it wrong: He does possess the divine right of kings, and as such, no other branch of government can touch him."
"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," Brown continued. "'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,' his lawyers write in their brief. They emphasize 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.'"
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The effect of such a holding, if judges were to agree with Trump, would effectively mean no president could ever be prosecuted for conduct they did in office, wrote Brown.
"It’s true that there must be guardrails to allow for the independence of the three branches of our federal government to operate without undue interference from the others," concluded Brown. "But when you look at not just this one appeal, but the aggregate constitutional worldview Trump has espoused over the last seven years, it’s obvious that 'guardrails' are not what he’s advocating. Neither Congress, nor the courts, nor the voters themselves can constrain a president in his framing. For the courts to agree would make Trump a president in name, an emperor in practice, and nothing close to what the Constitution and its drafters intended."
