Editor’s Note: Laurence Tribe?is the Carl M. Loeb University Professor of Constitutional Law Emeritus at Harvard University.?Norman Eisen,?who?served as counsel to House Democrats in the first Trump impeachment,?is a senior fellow at Brookings.?Taylor Redd is a research analyst at Brookings. The views expressed in this commentary are their own. View?more opinion?at CNN.
On Tuesday, the DC Circuit Court of Appeals heard oral arguments?in Donald Trump’s appeal?of?the trial court’s?rejection?of his?claim?that he has?absolute?criminal immunity. The former president’s presence in court signaled the issue’s exceptional importance. While it is sometimes difficult to predict from judges’ questions where they are heading, the argument strongly suggests Trump is going to lose — and resoundingly.
Right out of the gate, Judge Florence Pan, who emerged as the panel’s most incisive questioner, presented Trump’s counsel John Sauer with a hypothetical that exposed?the unthinkable consequences of Trump’s extreme position: Could a president who used his official authority to order?SEAL Team Six?to assassinate a political rival ever be prosecuted?
The question answers itself, and Sauer couldn’t square his client’s immunity claim with that and other confounding hypotheticals about extreme presidential action — an ominous sign for how Trump’s appeal will ultimately fare.
At that?point, and?time and again?on Tuesday, Sauer attempted to rely?on an escape hatch — one that malfunctioned badly. He argued that his position was not extreme because of a purported constitutional out: the impeachment judgment clause. He argued over and over again that the Constitution?did?allow prosecution of an ex-president — but only after he or she had been?impeached?by the House and convicted by the Senate for the same conduct.
But the panel was having none of it, refusing to take that entirely novel argument seriously. A key problem with the argument is that the impeachment judgment clause?says?the opposite of what Sauer claims. It?states that “the Party convicted [in an?impeachment trial] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” In other words, the clause?enshrines the rule that presidents can still be prosecuted?even if?they’re convicted of impeachment,?not?that presidents can be prosecuted?only if?they’re first convicted by the Senate.
Indeed, a central argument that senators defending Trump?made?at his 2021 impeachment trial was that his acquittal would leave him fully accountable for criminal prosecution later on. And as the judges?underscored?on Tuesday, Trump’s own counsel admitted the availability of later prosecution at the?time.
Accordingly, Judge Pan took Sauer to task by noting that he really wasn’t even arguing that there was absolute immunity, but was claiming that an impeachment conviction was simply a precondition for?prosecution. Her implication was clear: If the court brushed aside his nonsensical interpretation of the impeachment judgment clause, there was nothing to stop this prosecution of Trump.
Over and over, both Trump’s counsel and the government, represented by assistant special counsel?James Pearce, returned to one key issue:?the separation of powers?—?the constitution’s complex and dynamic division of authority among the executive, legislative and judicial branches.
Team Trump tried to press the?argument?that this doctrine mandates presidential immunity. But placing presidents?above?the law — by making them immune from criminal accountability — gets separation of powers backwards and upends the rule of law. Indeed, the one judge on the panel thought most likely to be favorably inclined toward Trump,?Judge Karen Henderson, who was appointed by President George H.W. Bush, pointedly remarked that it seemed paradoxical to say that a president’s constitutional duty to take care that the laws be faithfully executed entitles him to violate those very laws.
The separation of powers principle is among the reasons why there is no?express?constitutional provision permanently immunizing presidents for crimes committed while in office. Faced with that problem on Tuesday, Trump turned to the structure of the Constitution and its framers’ intent. But his arguments were left in tatters by the special counsel and indeed by the judges’ questions. As Judge Michelle Childs pointedly?noted?to Trump’s counsel, Trump’s immunity claim is irreconcilable with this nation’s history: Why, for example, would President Gerald Ford have pardoned Richard Nixon, if absolute criminal immunity existed?
Trump also attempted to?argue?that the DC Circuit should apply the?civil?immunity standard, which was?established?by the Supreme Court in Nixon v. Fitzgerald, to preclude his prosecution in this criminal case. But even if that standard were extended from the civil to the criminal setting, it would cover only conduct falling within the “outer perimeter” of a president’s official duties.
Tellingly, the judges?seemed to suggest?that even if? “outer perimeter” criminal immunity did exist, one could not reasonably conclude that the conduct?allegedly committed by?the former president is shielded by Fitzgerald’s generous?standard. To treat it as protected by Fitzgerald would require considering a president’s efforts to overturn the lawful results of an election as part of his official duties. The Constitution’s framers would be aghast by that even as an idea, let alone as the law. The panel seemed to agree, with Judge Childs noting prosecutors’?argument?that Trump engaged in his scheme not to carry out his official duties as president but rather to secure his re-election to that post.
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So the DC Circuit appears firmly poised to reject Trump’s immunity claim.?The?panel may also?address?one final question: whether Trump’s immunity appeal can even be resolved at this stage in the prosecution.
Even if the judges?conclude?that?his?appeal should have waited for the normal post-trial proceedings, we predict they will exercise their discretion to also?rule on?the?merits of the appeal and reject it as substantively baseless. That would avoid the delay of having the case bounce back and forth between the trial and appellate levels.
The American people?want and deserve to know?if Trump criminally abused presidential power, which he is seeking to regain, to attack our democracy.
Based on Tuesday’s proceedings and the DC Circuit’s?expedited?handling of this appeal, we think that the panel has no intention of shying away?from its merits and risking any delay. Look for them to rule briskly, likely this week or next. And when they do, expect them to reject Trump’s audacious claim that former presidents are entitled to absolute immunity for criminally abusing their power.