You know things are going badly for Trump when even flack Jonathan Turley has to admit he’s going to lose. Trump is seeking legal immunity for charges related to attempting to overturn the 2020 presidential election and his part in the January 6th insurrection, with his lawyers making the ridiculous assertion that he could not be prosecuted for anything without first being impeached and convicted during a federal appeals court hearing yesterday.
MSNBC’s Chris Hayes and his guests Lisa Rubin and Charles Colemen took apart his lawyer’s arguments and reminded everyone that we heard the very opposite remarks out of his attorney Bruce Castor during his impeachment trial.
HAYES: Okay, so the argument, the argument that Trump’s lawyer came back to time and time again, is that the only way that you could, under the Constitution, prosecute a hypothetical president for doing all those hypothetical crimes, would be if first, while he was president, he was impeached and convicted by a two thirds vote in the Senate. Now there are a bunch of reasons why that argument is ludicrous, not the least of which is that when the ex-president is being impeached the second time one of the arguments made for acquittal was that impeachment wouldn’t be the right venue. Republican Senate Leader Mitch McConnell argued at length it wasn’t the Senate’s job to hold Trump accountable. That’s what prosecutors and courts are for.
MCCONNELL: President Trump is still liable for everything he did while he was in office. He didn’t get away with anything, yet. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.[…]
HAYES: First, just give me your first read on the centrality of this argument, the you have to impeach and convict first argument. As it appeared today, which I was not anticipating to be central as it was.
RUBIN: That’s because it’s not the first line argument, right? The argument that they are making on presidential immunity starts with the overarching he’s immune from everything because of the structure of the Constitution and separation of powers principles. This was sort of like their second line.
The impeachment judgment clause of Article One of the Constitution, which is really intended to be a limit on the Senate, and essentially what it says is, if you impeach and convict someone of, the penalties you can impose on them are disqualification from holding office and removal from office and nothing further. But, nevertheless, nothing should prevent that person from also being liable in the court of law. There is nothing in that text that says anything about what avenues of relief are open, for example, to the Department of Justice, which is not addressed an Article One. This is meant as a constraint on Congress, not a get out of jail free card for a former president.[…]
HAYES: It’s just worth playing, because this is a classic Trump thing, like, in one venue the argument is like, this is the event. And the other venue, it’s not the venue now, right? They love to do this. Here’s Trump’s lawyer, during impeachment, assuring the Senators, look, if this doesn’t, if you don’t vote to convict, he can of course go get arrested and convicted. Take a listen.
CASTOR: If my colleagues on this side of the chamber actually think that president Trump committed a criminal offense, and let’s understand, a high crime is a felony and misdemeanor is a misdemeanor. The words haven’t changed that much over the time. After he’s out of office, you go and arrest him.
There’s no such thing as a January exception to impeachment. There is only the text of the Constitution, which makes very clear that a former president is subject to criminal sanction after his presidency, for any illegal acts he commits.
HAYES: That’s Donald Trump’s lawyer at the impeachment hearing making literally the opposite argument that his lawyer made today before these judges.
RUBIN: Yes, and one of the reasons it’s also specious is because this impeachment judgment clause doesn’t just apply to presidents. It applies to anybody who could be impeached by the House and Senate. That means former federal judges for example, cabinet secretaries. Some of those people have been prosecuted without impeachment. Hello Henry Cisneros, the former HUD Secretary. And there are a litany of federal judges who haven’t been prosecuted and convicted either, without impeachment, or before they were impeached.
So Trump’s lawyers had to have known that during the impeachment debacle that you just showed there. They understand full well that the impeachment judgment clause isn’t just about the president, and those real life examples show why it can’t possibly be victorious here.