Discover Trump's most ambitious argument in his bid for 'absolute immunity'

Virtually nothing in the Constitution's words would even begin to support the former president's boldest defense Donald J. Trump Against accusations that he planned to overturn the 2020 election: Suggestion that he enjoys immunity from prosecution for his actions while in office.

The federal appeals court is scheduled to hold a hearing on the issue next week, and factors such as history, precedent and separation of powers will be considered. But as the Supreme Court recognized, the Constitution itself does not explicitly address the existence or scope of presidential immunity.

In defending his appeal, Trump said there was a constitutional provision included in the analysis, but that this line of argument represents a very creative legal interpretation. This provision, called the Impeachment Clause, states that officials impeached by the House and convicted by the Senate are still subject to criminal prosecution.

The clause states: “In cases of impeachment, the trial shall not extend beyond removal from office and debarment from the exercise or enjoyment of any office of honor, trust, or privilege connected with the presidency.” we: But the convicted party will still be responsible and subject to accusation, trial and punishment, in accordance with the law.

In short, what this provision actually states is that a “party convicted” in the Senate may still be subject to criminal prosecution. But Trump said the clause meant something more than that.

Trump's memo said that this provision “presumes that an acquitted president cannot be subject to criminal prosecution.”

An amicus curiae brief prepared by former administration officials said Trump's position had “widespread and absurd consequences,” highlighting that a large number of government officials are being held accountable.

“According to the defendant’s interpretation, the executive branch will not have the authority to prosecute current or former holders of civil office for their actions in the exercise of that office unless they have previously been impeached and convicted in court,” the document said. Congress. Thus, countless authorities will obtain criminal immunity.

Trump also made another argument, even bolder and more specific: “A president who has been acquitted by the Senate cannot be impeached for conduct for which he was acquitted.”

As we know, Trump was acquitted in his second impeachment trial, on charges of incitement of rebellion, when 57 senators voted against him, ten votes short of reaching the two-thirds majority needed for conviction.

The idea that an acquittal would grant him procedural immunity may have surprised some of those who voted to acquit him.

For example, Senator Mitch McConnell, the Republican leader, who voted for acquittal. Shortly thereafter, in a fiery speech to the Senate, he said the legal system could still hold Trump accountable.

“We have a criminal justice system in this country,” McConnell said. “We have a civil suit. Former presidents are not immune from any of them.”

This indicates that Trump's interpretation of this provision is not at all clear, but the Justice Department said it is not at all implausible. In 2000, his Office of Legal Counsel issued a 46-page memorandum devoted specifically to this issue, titled “On the Possibility of Impeaching and Trying a Former President for the Same Crimes That Led to His Impeachment in the House and Acquittal in the Senate.” “.

The reasoning that such operations conflict with the Constitution “has some merit,” according to the memo by Randolph D. Moss, who is now a federal judge. But the text goes on to say: “Despite initial plausibility, such an interpretation of the impeachment clause seems unconvincing to us.”

Moreover: “We have no evidence to suggest that the framers and ratifiers of the Constitution would have chosen the phrase ‘convicted party’ with a negative connotation in mind.”

Most importantly, the memo said, “impeachment and criminal prosecution serve very different purposes.” Impeachment trials involve politics. Criminal trials involve the law.

In a brief filed Saturday, Attorney General Jack Smith wrote that “acquittal in a Senate impeachment trial may reflect a technical or procedural decision rather than a factual finding.” The document highlighted that at least 31 of the 43 senators who voted to acquit Trump in his impeachment trial did so in part because he was no longer in office and therefore would no longer be subject to the Senate's authority.

Trump's interpretation of the provision “would result in an implausible perversion,” Judge Tanya S. Chutkan, who is overseeing his trial in federal court in Washington, wrote in a ruling last month rejecting Trump's claim of absolute immunity.

She stressed that the Constitution provides for accountability in very specific cases – “treason, bribery and other major crimes and violations.”

Judge Chutkan stated that, in Trump's reading, “If a president commits a crime that does not fall within the specific classification of that limited category, and therefore cannot be prosecuted and convicted, then the president can never be tried for such a crime.” .

She continued: “On the other hand, if Congress does not have the opportunity to impeach or convict a president while he is serving in office, it may be because the crime occurred at the end of his term, or was covered up until after the end of his term.” From his term – the former president cannot be tried.”

She added that President Gerald R. Ford's comment on former President Richard M. Nixon, who resigned amid growing calls for his impeachment over his involvement in Watergate, was unnecessary under Trump's explanation. / Translated by Augusto Calil