WASHINGTON ― US President Joe Biden could, in theory, have Donald Trump abducted from his Mar-a-Lago home, spirited off to St. Helena in the faraway South Atlantic, and secretly kept there indefinitely, or even straight-up killed, without ever having to worry about criminal charges.
Or so says Donald Trump’s logic.
As part of his arguments against special counsel Jack Smith’s federal case against him for his actions leading up to the January 6, 2021 insurrection, the former president continues to claim that commanders-in-chief can never be charged for anything they do as part of their official duties.
It’s a view that has galvanised lawyers from across the political spectrum to urge federal appellate judges to reject Trump’s claims.
“It would turn the office of the presidency into the office of state-approved lawlessness,” said Glenn Kirschner, a federal prosecutor for more than two decades in Washington, DC.
Ty Cobb, a former Trump White House lawyer and one of the signatories to an amicus brief in the case, said Trump’s argument that he should be immune from any prosecution is “no more ridiculous” than the Biden hypothetical. He said Trump’s lawyers have not been able to come up with any sound legal arguments on his behalf because there aren’t any.
“There is no legal support. That’s the reality,” he said. “It’s the same as he’s been saying for years: He could kill someone on 5th Avenue.”
Renato Mariotti, a former federal prosecutor in Chicago, said that as outlandish as the Biden example sounds, if Trump’s view of presidential immunity is correct, Biden could get away with it ― “as long as he could assert some sort of national security rationale for doing so.”
Neither Trump’s campaign staff nor his lawyers responded to HuffPost’s queries. But his lawyers have repeatedly argued that everything Trump did leading up to and during the assault on the Capitol by a mob of his followers was part of his “official” duties as president, and therefore cannot be punished via the criminal justice system.
In defending Trump’s action, his lawyers in a Tuesday night filing repeated Trump’s claims that he was looking into voter fraud, although the only real allegation of “fraud” was coming from Trump himself with virtually no evidence. “President Trump was carrying out his duties as chief executive to investigate the overwhelming reports of widespread election fraud,” wrote lawyers John Sauer, John Lauro and Todd Blanche, who then cited one of Trump’s own social media posts as proof.
Smith, who is prosecuting Trump on a range of charges including conspiracy and obstruction of an official proceeding based on the January 6 coup attempt, said in another filing that if Trump’s analysis is correct, it would legalise a parade of tyrannical behaviour.
“The defendant’s sweeping immunity claim threatens to license presidents to commit crimes to remain in office. The founders did not intend and would never have countenanced such a result,” Smith wrote in an 82-page brief filed over the New Year’s weekend.
He then went on to present scenarios even more extreme than the hypothetical of Biden shipping Trump off to the island where Napoleon was ultimately exiled, should Trump’s immunity claim be accepted by the courts.
“That approach would grant immunity from criminal prosecution to a president who accepts a bribe in exchange for directing a lucrative government contract to the payer; a president who instructs the FBI director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy,” Smith wrote.
“Under the defendant’s framework, the nation would have no recourse to deter a president from inciting his supporters during a State of the Union address to kill opposing lawmakers ― thereby hamstringing any impeachment proceeding ― to ensure that he remains in office unlawfully,” he went on.
A White House spokesperson, citing its continuing policy, declined to discuss Trump’s legal case but said that Biden had worked to restore the Department of Justice’s independence.
Norm Eisen, a White House lawyer during the Obama administration who worked on the House of Representatives’ legal team during the first Trump impeachment, said Trump’s immunity theory would undo the founders’ goal of avoiding an unaccountable monarchy.
“Trump’s argument actually turns the American idea on its head,” Eisen said. “Election to the presidency would become an authorisation to go on a non-stop crime spree as long as a president could claim that his actions, however tangentially, were related to his official duties. This can’t be right.”
Trump’s claim of “absolute immunity” has already been rejected by US District Judge Tanya Chutkan, who is overseeing the case. Smith asked the US Supreme Court to step in and settle the question immediately, skipping review by the appellate level court, but the high court declined to do so.
The Circuit Court of Appeals for the District of Columbia has fast-tracked the case and could rule relatively soon after next week’s oral arguments. If it upholds Chutkan’s December ruling, Trump would have the right to appeal that to the Supreme Court, although that court may choose not to take it.
Chutkan had planned to start Trump’s trial on the four-count indictment in early March, a date that may not be possible given the months likely to be lost in the current appeal.
Trump is separately under federal indictment in South Florida for refusing to turn over secret documents he took with him to his Palm Beach country club when he left the White House. He also faces an indictment in Georgia state court based on his attempt to overturn the state’s 2020 election results, and another indictment in New York state for falsifying business records to hide a $130,000 (£102,495) hush money payment to a porn star.
Notwithstanding all the criminal charges ― the most serious of which could land him in prison for decades ― he remains the polling leader for the 2024 Republican presidential nomination.