The Trump Gambit: Immunity from Prosecution and Other Trump Nonsense

So, Donald Trump's defense regarding the January 6 criminal indictments has deteriorated to, I'm untouchable regarding the attempted insurrection on January 6, 2021, because the Senate didn't convict me after the House impeached me. It's too bizarre to take seriously and too serious to take lightly.

In addition to Article II, Section 4 of the Constitution, which addresses the authority of Congress to remove federal officials, including the President, for high crimes and misdemeanors, Article Two of Section Three of the Constitution contains the so-called "Take Care Clause" which confers upon the President the responsibility to take care that the laws of the nation are faithfully executed and not disregarded. So, what are the remedies when a president's official acts make a mockery of these most basic responsibilities?

The former President maintained in court this week that because two-thirds of the Senate failed to convict (remove) him when the House of Representatives twice impeached him, he now enjoys absolute immunity for any crimes he may have ever committed as official acts while President.

He seems to argue that the law now applies to everyone except him. He maintains that the removal procedure, that is, impeaching and convicting a President for high crimes and misdemeanors as spelled out in the Constitution, is a prerequisite to ever criminally prosecuting an accused former President for crimes committed while he was still President as long as the crimes in question were official acts of the President.

Or, to put this absurd position in sharp focus, as did the three appellate judges who heard the criminal case against Trump earlier this week, if a sitting President had his political opponents in Congress murdered, he could not be prosecuted for murdering them unless the remaining members of Congress impeached him, and the Senate then convicted him, assuming he hadn't had his Senate opponents murdered as well.

I'm only kidding, right? Surely, that isn't what Trump's lawyers were advocating in court this week…right? Well, no. That is precisely what Trump, through his attorneys, was arguing. That is exactly what Trump's attorney, John Sauer, maintained during arguments at the D.C. Circuit Court of Appeals regarding whether Trump is immune from prosecution. Sauer maintains that Trump (or any president) could, as an official act, order the military to kill political rivals, sell military secrets to foreign adversaries, or peddle pardons to criminals and still be immune from prosecution for those crimes unless Trump was first impeached and then convicted in a Senate trial.

Of course, a rational person might conjecture that a President whose political party-controlled Congress would then be free to commit any crimes, even murder, as long as he enjoyed the absolute loyalty of enough of his party colleagues in Congress. Appellate Judge Florence Pan incredulously asked Trump's attorney, John Sauer, during arguments, whether it was his (and therefore Trump's) position that a president "could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival," and be immune from prosecution if a partisan House and Senate refused to impeach and convict him. Yep, said Trump attorney Sauer during arguments at the D.C. Circuit Court of Appeals—no impeachment and conviction, then no further adjudication. A president would be off, scot-free, with no additional legal exposure. Now, this is crazy stuff.

 "He (Trump) would have to be impeached and convicted before any criminal prosecution," Sauer said. "A political process would have to occur under our Constitution."

"If there's no impeachment, and therefore, no conviction (or an impeachment but no subsequent conviction), then the President's illegal acts are immune from any further prosecution. Period," Sauer added.

Prosecutor and assistant special counsel James Pearce expressed grave concern for the country's future if presidents could kill rivals or sell national secrets and suffer no consequences without an impeachment and conviction. "I think that is an extraordinarily frightening future," Pearce said.

No one has ever suggested that such a get-out-of-jail-free card exists for the President of the United States. The ramifications of such a principle are horrendous. Given the extreme partisanship in the country today, a President could do anything construed as an official act with absolute impunity as long as he or she enjoyed a highly partisan House and Senate whose first loyalty would be to the President rather than to the bedrock principle of equal justice under the law. It would mean that Judge Tanya Chutkin was dead wrong when she told Donald Trump, "We don't elect kings in America; we elect Presidents who are not above the law."

Trump contends he is immune to federal charges of conspiring to interfere in the 2020 election because his actions were an official act that took place while he was President. Although Trump was impeached in the House of Representatives, he was acquitted in the Senate because only a majority, but not a two-thirds majority, voted for a conviction for inciting the Capitol attack on January 6, 2021.

Concerning the January 6^th insurrection, he did nothing wrong, nothing that offended the United States Constitution, because, as he has said, he had absolute immunity. Trump's attorney argued that because the Senate failed to convict Trump following his impeachment, he could not be tried again for the same events. The Senate voted 57-43 to convict Trump, but a two-thirds majority was required for conviction.

So, in Trump's World, a President who enjoys the absolute support of a partisan congress is, indeed, a king. And in Trump's mind, we, the citizens of the United States of America, were and will again be his subjects. And if this king is ever returned to his throne, getting him off the throne may be more difficult than anyone can imagine.

No one needs to struggle to divine what he might do in the Oval Office if he enjoyed enough support in the House and the Senate. He would, literally, be above the law as we know it, according to his legal counsel.

According to Trump's attorney, every notion we've ever had about a citizen president is wrong. U.S. District Judge Tanya Chutkan would have been wrong when she rejected Trump's request to dismiss the case. "Defendant's four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens," Chutkan said in her December 1 ruling.

Except that is the position on which Trump's defense rests. A President who has been impeached by the House but not convicted by the Senate for any "official act" cannot ever be later convicted in a court of law for the crimes of which his partisan party colleagues failed to convict him.

President Trump could have ordered the military to kill his political rivals, sold military secrets to foreign adversaries, or peddled pardons to criminals and still would be immune from prosecution for those crimes today unless he was first impeached and then convicted in a Senate trial, his lawyer argued.

"No prosecutor, judge, or jury may sit in judgment over the President's official acts," Sauer wrote in his filing. "A President's official acts 'can never be examinable by the courts,'" he wrote, quoting one of the earliest Supreme Court decisions.

"If there's no impeachment or conviction, then the official acts are immune. Period," Trump's attorney maintained.

One wonders if that is what James Madison, Alexander Hamilton, and John Jay, the primary drafters of the Constitution of the United States, really had in mind when they envisioned a citizen President instead of a royal king. Somehow, I doubt it.

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 Recent podcasts have featured my commentary on Liz Cheney’s new book, “Oath and Honor,” US Representative Jim Jordan, Brian Kemp and Those Republicans of Georgia, the Trump Indictments, the Fox Corp Settlement, The CNN Trump Town Hall, the Hunter Biden plea deal, The New American Cult of Personality, and my interviews with

William Bratton, Retired Chief of Police, New York City, Los Angeles, and Boston

Rikki Klieman, Attorney, Network News Analyst, and best-selling author

John Thoresen, Executive Director, Barbara Sinatra Children's Center

Katherine Gehl, co-author of The Politics Industry and founder of the Institute for Political Innovation

Jazz artist Ann Hampton Callaway

Outlander author Diana Gabaldon

AI Data Scientist Lawrence Kite

Ryan Clancy, Chief Strategist of No Labels

Senator Barbara Boxer

Senator Joe Lieberman

Maryland Governor Larry Hogan

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Please consider our Of Thee I Sing 1776 Premium option. While my weekly column is always free, for just $5/month, you’ll also receive my annual ebook, “Essays For Our Time,” and my new Podcasts.

https://oftheeising1776.substack.com/subscribe.