"Preposterous, nonsensical, and a sure loser": Legal scholar trashes Trump's "immunity" claim

After the U.S. Supreme Court declined to quickly decide Donald Trump’s claim that he cannot be prosecuted for trying to undo the 2020 election results, the former president urged a federal appeals court to dismiss the federal election interference case in Washington, DC, arguing that presidential immunity shields him from prosecution.

Lawyers for the former president reiterated that Trump was within the “outer perimeter” of his official responsibilities as president to “ensure election integrity” when he questioned the results of the election. Therefore, under Supreme Court precedent, the ex-president is immune from prosecution, they argued.

“The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our Nation for many decades to come and stands likely to shatter the very bedrock of our Republic—the confidence of American citizens in an independent judicial system,” lawyers for Trump wrote in a filing late Saturday night.

Trump is asking the D.C. Circuit Court of Appeals to reverse U.S. District Judge Tanya Chutkna's decision to dismiss his immunity claims in the election subversion case led by special counsel Jack Smith. The appeals panel is considering Trump's request, which the Supreme Court declined to expedite on Friday, as Smith requested.

The case “presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office,” Smith said in his request to the Supreme Court.

Trump's legal team objected to Smith's request, asserting in a court filing that the special counsel's attempt to bypass the normal appellate process amounted to a "rush to decide the issues with reckless abandon."

The former president reacted to the rejection on social media. "The Supreme Court has unanimously rejected Deranged Jack Smith’s desperate attempt to short circuit our Great Constitution,” he wrote on Truth Social. “Crooked Joe Biden and his henchmen waited three years to bring this sham case, and now they have tried and failed to rush this Witch Hunt through the courts. Of course I am entitled to Presidential Immunity. I was President, it was my right and duty to investigate, and speak on, the rigged and stolen 2020 Presidential Election.”

Even though Trump claimed that the ruling Friday was unanimous, the court did not disclose its vote on the matter. The ex-president has repeatedly tried to delay his March 4 trial making immunity claims, which legal experts say are destined to fail.

“Trump’s claim of absolute immunity for his actions to try to subvert the results of the 2020 electoral given the uncontested facts is preposterous, nonsensical, and a sure loser,” Bennett Gershman, a former New York prosecutor and law professor at Pace University, told Salon. 

When Trump urged a mob to storm the Capitol, he was aware that all courts had dismissed his claim that the election was invalid. His closest advisors told him the same thing and he “teamed up with cronies” to prevent a lawful transition of the presidency, Gershman said. Nothing Trump did to subvert the election was done as president. Everything he did was “outside the normal and routine acts” that presidents perform. 

Consider the implications of a president engaging in actions taken to benefit himself personally, but having nothing to do with his role to “execute the laws of the United States.” If he shot someone on Fifth Avenue would he claim absolute immunity, Gershman questioned.

“While monarchs may claim absolute immunity, Trump was not king, however much he may have thought he was,” Gershman said. “If his unlawful, unconstitutional, and criminal behavior can be deemed official acts, then we must deem Trump to have been King of America. While his MAGA extremists might like that, that’s not how America works.”

Former federal prosecutor Neama Rahmani also agreed and said that Trump’s presidential immunity argument is “weak” as courts have consistently ruled that campaigning is outside the scope of one's official duties. The Supreme Court would have to "go against long-standing precedent to side with Trump."

"But even if the substantive argument is weak, Trump is effectively using the executive immunity and double jeopardy appeal as a procedural tactic to delay his trial,” Rahmani said. “Trump's best defense has always been to push his criminal trials past the November election because if he regains the White House, a sitting president can't be prosecuted.”

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The appeals court has fast-tracked its review, scheduling oral arguments for January 9. Judge Chutkan, who is overseeing the criminal case, has temporarily halted all procedural deadlines during the appeal process.

Earlier this month, Trump's legal team requested the appeals court to review Chutkan's ruling on immunity, which dismissed Trump's immunity claims. The judge said in her opinion that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Judge Chutkan played into Trump’s strategy when she agreed "to stay or pause" the D.C. election fraud case while the appeals play out, Rahmani said. 

The trial is one of four criminal cases confronting the leading candidate for the 2024 Republican presidential nomination. Trump is also facing federal charges in Florida for mishandling classified documents, state charges in Georgia for attempting to obstruct election results and state charges in New York for falsifying business records linked to a hush money payment during the 2016 election campaign.

“Delaying the trials is for Trump and his lawyers the name of the game,” Gershman said. “The longer they can delay the proceedings the greater the likelihood that a court will defer a trial until after the 2024 election, assuming Trump is the candidate and the Supreme Court doesn’t get in the way.”