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As Donald Trump’s lawyer, D. John Sauer, tried to convince the U.S. Supreme Court that his client should have immunity from prosecution, there was a phrase the defense attorney turned to on several occasions.
“A former president,” Sauer said, “has permanent criminal immunity for his official acts, unless he was first impeached and convicted” in Congress. What if a president were to sell nuclear secrets to a foreign adversary? He or she “would have to be impeached and convicted first,” the attorney told the justices. What if a president tried to stage a coup? He or she “would have to be impeached and convicted,” he added.
Summarizing his position, Sauer at one point declared, “I’ll say in response to all these kinds of hypotheticals, [a president] has to be impeached and convicted before he can be criminally prosecuted.”
It is, to be sure, a difficult argument to take seriously. The presumptive GOP nominee’s defense counsel apparently expects the judiciary to agree that a former president might be subject to prosecution — for some of the most outrageous felonies imaginable — but only if a majority of the U.S. House and two-thirds of the U.S. Senate act first.
But it’s not just foolish. It’s also the opposite of what the Republican’s lawyers said during Trump’s second impeachment trial. MSNBC’s Chris Hayes was understandably exasperated by this as the oral arguments progressed.
This might seem a little complicated at first glance, but it’s actually entirely straightforward:
- In early 2021, Trump’s lawyers said during his second impeachment trial that there was no need for the Senate to convict the former president, because the matter was better left to the judiciary.
- In early 2024, Trump’s lawyers said the former president’s alleged crimes can’t be left to the judiciary, because the Senate didn’t vote to convict.
The Washington Post ran a great analysis on this in January, highlighting the specific claims the former president’s defense counsel made — out loud, on camera, during the Senate impeachment trial.
“We have a judicial process in this country; we have an investigative process in this country to which no former officeholder is immune,” Trump attorney David Schoen said at the time. “That is ... the appropriate one for investigation, prosecution and punishment, with all of the attributes of that branch.”
Schoen went to argue that that the courts were better prepared, because Congress “does not and cannot offer the safeguards of the judicial system.”
Soon after, Bruce Castor, another member of Trump legal team, was even candid on this point: “If my colleagues on this [Democratic] side of the chamber actually think that President Trump committed a criminal offense ... after he is out of office, you go and arrest him.”
In other words, Team Trump effectively argued in 2021, “Congress should leave such matters to the courts.” It’s now arguing, “The matter can’t be left to the courts because Congress needs to act.”
How are the former president and his lawyers resolving the contradiction? By ignoring it and hoping others don’t notice.