When former President Donald Trump’s lawyers appeared in federal appeals court Tuesday, the odds were already not in their favor. And they seemed to grow slimmer the more they argued their case. At issue was their claim that, as a former president, their client has immunity from the criminal charges that a grand jury impaneled by special counsel Jack Smith brought in an election interference case. The three-judge panel that heard their arguments was rightly skeptical — and at one point used a former member of their client’s defense team to poke holes in their flimsy legal theories.
Trump is attempting to make two interlocking farcical arguments in this case. I’ve previously debunked one of them, which posits that to prosecute a president who was acquitted in a Senate impeachment trial would violate the “double jeopardy” clause of the Fifth Amendment. The second argument, made by his lawyer John Sauer, is that the former president enjoys a blanket immunity for actions he took in office, one that can be overcome only in the event of a conviction in the Senate.
There are several reasons these propositions make no sense.
There are several reasons these propositions make no sense. It would mean a world where a president is unable to be held accountable for a crime short of impeachment’s “high crimes and misdemeanors” standard. Judge Florence Pan further pointed out how that kind of loophole could be abused, especially in the waning days of a presidency. She asked whether a president could order an assassination of a political rival but get off scot-free if not convicted in an impeachment trial. Sauer, wildly enough, agreed with that hypothetical.
While that was the most headline-grabbing moment of the hearing, it was what Pan said later that managed to completely implode the supposed “double jeopardy” argument Trump’s lawyers were making.
The sole article of impeachment in the second case the House brought against Trump, passed in the aftermath of the Jan. 6, 2021, attack on the Capitol, charged him with incitement of insurrection. That article passed the House on Jan. 13, but his Senate trial didn’t begin until Feb. 8, after his term had ended and he’d left office. That delay provided just enough cover for some Senate Republicans to see a way to condemn Trump’s actions without having to vote to convict him.
Judge Pan reached back into the congressional record to pull out an argument that David Schoen, a member of Trump’s counsel, leaned on. He and his co-counsel focused on Trump’s return to life as a private citizen in arguing their case. The Constitution dictates that the primary punishment for impeachment is removal from office, with the option for senators to also ban that person from holding office again. As Trump was already out of office, they argued, the Senate lacked the power to keep him from running to reclaim the White House.
Rather than impeachment, the courts should be the ones meting out any potential justice to Trump, Schoen claimed. “We have a judicial process in this country,” he said as part of his opening remarks. “We have an investigative process in this country to which no former officeholder is immune. That is the process that should be running its course.”
You don’t get to be a Trump lawyer if you let “facts” or “precedent” get in the way of defending your client. Schoen and Sauer both leaned on the same section of the Constitution to make opposite arguments. Article I, Section 3 states that after being convicted in an impeachment trial, a person “shall nevertheless be liable and subject to indictment, trial, judgement and punishment according to the law” once removed. “Clearly, a former civil officer who is not impeached is subject to the same,” Schoen said, completely forgoing any idea that some kind of presidential immunity was on the table for Trump. That’s the correct way to read that clause, but you don’t get to be a Trump lawyer if you let “facts” or “precedent” get in the way of defending your client. When confronted with his predecessor’s statement, Sauer tried to parse it to an absurd degree, claiming that a former president is still subject to the “judicial process” — but that such process couldn’t possibly end in a conviction. We shouldn’t be surprised. This is the same team that plans to argue to the Supreme Court that the 14th Amendment doesn’t bar insurrectionists from running from office, only from holding office. But it’s the exact kind of move of the goalpost that’s a constant from Trump. When impeached, he says only the courts could possibly hold him accountable; when faced with criminal charges, he says prosecution is impossible without an impeachment. There’s not much of a chance that Tuesday’s judges will find Sauer’s tap-dancing convincing. Should the court correctly find Trump’s immunity argument ridiculous, Sauer has indicated that the next step is to go to the Supreme Court. The argument is likely to fail there, too. But all that really matters here is running out the clock, bumping the trial’s March start date further and further back, until Trump is safely back in office, able to dismiss the charges against himself and turn his immunity fantasy into reality.
Hayes Brown is a writer and editor for MS NOW. He focuses on politics and policymaking at the federal level, including Congress and the White House. 
