Lawyer Argues Trump Could Kill A Guy And Be Immune From Investigation Or Prosection
What started out as a joke on the campaign trail has turned into a serious legal argument being made to a Federal Judge by an attorney for the President.
One of President’s lawyers has taken a campaign joke and raised it to the level of a serious legal argument:
A federal appeals panel on Wednesday expressed skepticism that President Trump had a right to block state prosecutors in Manhattan from enforcing a subpoena that sought his personal and corporate tax returns for the last eight years. The judges on a three-member panel in Manhattan peppered a lawyer for Mr. Trump with questions, expressing skepticism about the president’s argument that he was immune from criminal investigation. A lower court judge earlier this month rejected Mr. Trump’s claim, which has not previously been tested in the courts.
Carey R. Dunne, the Manhattan district attorney’s general counsel, cited the president’s famous claim that he could shoot someone on Fifth Avenue without losing political support.
Mr. Dunne asked what would happen in that extreme scenario? “Would we have to wait for an impeachment proceeding to be initiated?” he said.
Later, Judge Denny Chin posed the Fifth Avenue hypothetical to William S. Consovoy, a lawyer for Mr. Trump, and asked for his view.
“Local authorities couldn’t investigate? They couldn’t do anything about it?” Judge Chin asked, adding: “Nothing could be done? That’s your position?”
“That is correct. That is correct,” Mr. Consovoy said.
The panel did not immediately indicate when it would issue a ruling, but Judge Robert A. Katzmann, the appeals court’s chief judge, signaled that he and the other judges understood both the gravity of the matter and that they were unlikely to have the final word.
“This case seems bound for the Supreme Court,” Judge Katzmann said early in the arguments, adding later, as the hearing wrapped up, “We have the feeling that you may be seeing each other again in Washington.”
(…)
Throughout the arguments, the judges returned to the president’s claim of broad immunity.
“Your position,” Judge Chin addressed Mr. Consovoy at one point, “is that the immunity is absolute.
“And so if the president were to commit a crime, no matter how heinous,” Judge Chin continued, whether he did it before he took office or after he entered, he could not be the subject of any investigation.
“That’s the position?”
“Yes,” Mr. Consovoy replied, adding, “Of course, Congress retains the impeachment power.”
The hearing this week is on the appeal of a ruling that was handed down by Federal District Court Judge Victor Marrero who ruled against Trump in a lawsuit that had been filed on his behalf in an effort to block an ongoing investigation in New York City. by Manhattan District Attorney Cyrus Vance, Jr., who happens to be the son of President Jimmy Carter’s first Secretary of State. That investigation is apparently related to the payoffs that were made to adult film star Stormy Daniels and Playboy model Karen McDougal to induce them to remain silent about their past relationship with Trump during the final months of the 2016 Presidential campaign. It is in no small part because of these payments that the President’s former lawyer Michael Cohen sits in Federal prison in a case in which the President was identified as “Individual 1,” effectively an unindicted co-conspirator with Cohen in an effort to evade federal campaign finance laws. Vance is apparently investigating the matter to determine what, if any, New York state laws may have been violated by the payoffs and who could be culpable under those laws.
In his initial lawsuit, Trump and his lawyers made the argument that Vance was precluded from obtaining copies of the tax returns because the same argument(s) that support the position that a sitting President cannot be criminally indicted also mean that he cannot be investigated as part of a criminal proceeding. By putting forward this argument the President’s lawyers may have bitten off more than they can chew, especially if the manner in which Judge Marrero reacted to the argument. In his more than 70 page opinion, the Judge categorically rejects the idea that a President cannot be criminally investigated as adopting a view of the Presidency that, he argues, goes far beyond the powers and protections provided by Article II of Constitution.
In his ruling, Marrero called the view that the President is immune from investigation to be “repugnant” to the Constitution. What made his ruling most significant, though, is that it could also be applied to the view held by the Justice Department’s Office of Legal Counsel that the President is immune from criminal indictment while in office. This argument that has been accepted as settled law since the Justice Department’s Office of Legal Counsel first looked at in the wake of the Watergate scandal and then revisited in the 1990s while President Clinton faced charges of perjury in the context of a Federal civil lawsuit that eventually led to his impeachment in 1998. It was based on this long-standing policy that Special Counsel Robert Mueller and his legal team precluded themselves from drawing any conclusions about whether or not the President had broken any laws with regard to the Russia investigation even though there was significant evidence to support the idea that he had engaged in obstruction of justice at the very least. Based on Marrero’s reasoning, though, the question then becomes why there should be a legal bar on a President being indicted during the course of his Presidency.
The President’s attorneys are raising this same argument on appeal, and the line of questioning that the panel judges engaged his attorney in point out just absurd the argument actually is. The idea that a sitting President could not even be investigated in a criminal proceeding in the event he committed the fabled murder on Fifth Avenue is fundamentally absurd, It becomes even more absurd when, as is the case here, we’re talking about conduct that occurred prior to Trump becoming President. As Judge Marrero put it, such an idea goes against the very logic of the Constitution and raises the President well beyond the type of office it is supposed to be pursuant to Article II of the Constitution. Instead, it pictures the President to be equivalent to the absolute Monarchy exemplified by pre-Revolutionary France or Czarist Russia. That is most assuredly not what the drafters of the Constitution intended.
The canard about the President being able to shoot someone on Fifth Avenue, of course, started out as something of a joke during the 2016 campaign to illustrate the cult-like worship he receives from his supporters. The fact that it is now being raised as a serious legal argument by his attorneys is perhaps the best demonstration we have of the extent to which the rule of law, and sanity, have disappeared under this Administration. In any event, given the expedited nature of the hearing we’re also likely to get an expedited ruling. This means that the matter could be before the Supreme Court in the form of a petition for review before the end of the year.
Tiny is the owner of a limited partnership, The Trump Organization. If a prosecutor were to have probable cause that a crime has been committed by the organization, do Tiny’s lawyers contend that the organization is immune from prosecution?
It might be a good time to untangle the President from the executive. Yes, the executive branch handles many high-stakes, time-critical issues. That’s what many of those federal employees are for. If the Presidency, on the other hand, is so uniquely responsible for tracking all these issues and making all the critical decisions that he or she can’t be bound by the same laws as everyone else, then there’s something fatally wrong with the job description. It’s not feasible to put that burden on a single person’s shoulders, and it’s Constitutionally ridiculous (and unnecessary) to have a separate category of lawlessness reserved for one person. In fact, Trump’s tenure demonstrates what kind of catastrophically bad decisions occur when the President cuts out the rest of the executive branch.
What self-respecting attorney would stand in front of a panel of judges and make this argument? An attorney who is also part of the Cult; someone who has pledged his absolute loyalty to the Cult leader, and willingly chosen to un-tether from empirical reality.
So many people have poo-pooed the warnings, saying it’ll be fine and the institutions will hold.
Today the DOJ, run by another member of the Cult, has opened a criminal investigation into their own probe of Russian interference in the 2016 presidential election.
The institutions are not holding, the Cult is winning, and we are at a crisis point.
@Daryl and his brother Darryl:
I don’t fault the attorney. An attorney’s job is to zealously represent their client within the bounds of the law. The argument this attorney is making is the logical extension of the position that a President cannot be indicted while in office, even for a crime committed before he or she became President, The fact that the argument can be taken to the absurd lengths the Judge pointed out isn’t the lawyer’s fault.
In my own case, I have often found myself required to make legal arguments that I disagreed with in some philosophical sense. That didn’t stop me from making them and, indeed, it would have been malpractice and unethical for me to refrain from making that argument just because I found it distasteful. If a lawyer finds themselves in a position where they are making arguments that conflict with their personal views so much that they cannot adequately represent the client then their obligation is to cease representation if they can do so without damaging the client’s interests. Otherwise, you swallow your pride, make the argument, and let the chips fall where they might.
@Kingdaddy:
The President *is* the Executive Branch, You cannot “untangle” the two.
@Doug Mataconis:
Repeated because this is a really important point.
Still the fact that this argument will most likely be made in front of the current Supreme Count doesn’t exactly give me the warm fuzzies (though I expect that any SC ruling on the broader issue will be very, very, VERY narrow).
@Doug Mataconis:
Neither will you fault Justice Boof when this is decided in favor of Trump by a 5-4 count.
@Daryl and his brother Darryl:
Don’t be so sure about that. And don’t be so sure about Gorsuch or Roberts either.
@mattbernius:
I am not quite as pessmisstic as you are in that regard. I suspect C.J. Roberts may be skeptical of this argument, as would Justice Gorsuch, who has a record of being skeptical of broad Executive Branch assertions of authority, In that regard, it is ironic because Merrick Garland has a record on the D.C. Circuit Court of Appeals of being far more deferential toward the Executive Branch than Gorsuch did during his time on the Tenth Circuit Court of Appeals.
Yep.
I find it odd that everyone relies so heavily on an internal legal opinion which has never been tested in court.
Actually, that famous comment “princeps legibus solutus est” (the prince is released from the law) which ended up bedevilling medieval legal arguments and having a major effect on medieval views of secular authority was in fact dragged entirely out of context. IIRC, the original comment dealt with the estate of an empress and some reporting requirements. It made perfect sense in context to exempt the emperor because he would have been required to report to himself. And from this one tiny snippet a entire scaffold of irresponsible absolutism of authority was erected.
(A similar expansion of interpretation occurred around certain phrases in the Bible: “I have two swords.” “Put them up, one is enough.” Upon this was built the entire idea that the Church had no need for a physical police force (armies) and should content itself with moral authority.)
So the Congress retains the power of impeachment, which they could even exercise if the king could be investigated.
A king has a divine right. A president, or Trump in this case, does not.
There are two reasons why the Supremes may disagree with the Cheeto Inc. White House:
1) Justices have a lifetime appointment independent of everything else, and can be removed only through impeachment in Congress. They also stand on the pinnacle of the legal profession. They don’t have to pander to the base.
2) Because they have a lifetime appointment, they will be on the Court far, far longer than Trump the usurper. granting Dennison what amounts to a divine right would make for a killer argument to pack the court. Also, what if the next president takes this divine right and, say, exercises it by shooting Kavanaugh’s brains, or his head?
I agree far more with Doug: than with mattbernius on this. Assuming the panel finds this position as ridiculous as the district court did, I would love to see SCOTUS issue a per curiam opinion that just says “affirmed.”
@Doug Mataconis:
I tend to think your right — in particular about Gorsuch. I just have no sense of Roberts.
@mattbernius: My sense of Roberts is that he is very concerned with the image of the Supreme Court as being above all the low political squabbles the other branches of govt are immersed in. Sometimes I get the feeling that he lets that push him one way or the other depending on how the other justices vote, but that could well be my own observational bias.
It’s a thread that’s gone pretty far and no one has mentioned John Yoo, his contention that a terrorist’s son could be tortured in front of him if the President (GWB at the time) ordered it or the Federalist Society as an incubator of such un-American ideas.
This is fairly orthodox “conservatism” and has been for at least a decade.
Larry Diamond in Ill Winds: Saving Democracy from Russian Rage, Chinese Ambition, and American Complacency talks a good deal about how central the rule of law is democracy.
And the rule of law means everybody, no exceptions.
I suspect @mattbernius: is right, this court will make a very narrow ruling on the tax case and leave the notorious OLC opinion unaddressed. Assuming it makes it to SCOTUS before the issue is mooted by Trump leaving office.
However, should the OLC opinion fail judicial review, do we get a redo on the Mueller Report?
@Doug Mataconis:
Could you unpack that for me a little? I don’t see how you get from an argument that the sitting President can’t be indicted (which is not prima facie wrong) to an argument that the sitting President can’t be investigated. That seems like a huge leap to me. Would the argument that Judge Marrero relied on apply equally to both indictment and investigation?
@DrDaveT:
As I said in my pos about Judge Marrero’s ruling earlier this month, even though the Judge did not consider the issue because it was not before him I believe his ruling could be used to argue against the idea that a sitting President cannot be indicted under any circumstance.
As for the rest of your question I think the idea that the current argument being advanced by Trump’s attorneys is a direct descendent of the argument that the OLC makes in the memo regarding Presidential indictment. There’s also the argument that if a party is immune from indictment then they are, by extension, immune from investigation. This is essentially the argument that the Special Counsel relied on when it stopped short of investigating the President on obstruction or collusion charges.
@Doug Mataconis:
There’s a word missing from that otherwise excellent statement: ethically. An attorney must *ethically* be zealous in their representation within the bounds of the law. Don’t forget where the word zealous came from in the first place: a cult remember centuries later for being so utterly devoted to their interpretation of the Law they killed not only Romans but their own kinsmen rather then be rational and compromise. Zealots were one of the Ur-examples of cult thinking overtaking a political movement.
Defending your client is one thing. Defending your client with an absurd legal premise is another but still toes the line. But suggesting in all honesty that POTUS is essentially King and cannot by touched while King is antithetical to the democratic system. They are betraying every ethical standard by submitting the ultimate in unethical behavior on multiple occasions- that POTUS is a law unto himself and has no equal to hold him accountable under the Constitution. I support a lawyer’s right to do their job and defend their client but it does not extend to unethical behavior.
@OzarkHillbilly: Your comment made me wonder how they actually vote. Can one Justice decide his vote based on the votes of the others? Do they vote simultaneously? It’s a detail I never thought about.
@Doug Mataconis:
This is obviously true.
Also, and IANAL, the ridiculousness of the argument would seem to render the OLC memo, which has never been exposed to a court of law, meaningless.
Unless of course you are a member of Cult#45 and see Trump as a King…all powerful and above the law.
@Doug Mataconis: So what’s the difference then between, “The President IS the executive branch,” and, “L’etat, c’est moi?”
Geez, at least we can distinguish some crimes that don’t have anything to do with executing Presidential duties.
I’m more curious about the scenario where the President is an active shooter.
– Are the police not able to intervene?
– Does the secret service still have a duty to protect him?
It’s a logical extension of the current argument.
It’s also worth remembering that the purpose of the DOJ memo was to state that the Vice President could be indicted. It took all the arguments that Spiro Agnew’s team was using, and said “well, sure, those would apply to the President, but the Vice President is a nothing job.”
The DOJ memo was also not even tested on that front, as Agnew resigned, was charged and pled no contest in that order, in the space of five minutes.
@Doug Mataconis:
No, the President is the head of the executive branch, not the embodiment of the executive branch.
This is why we usually want an independent attorney general who acts as the people’s lawyer rather than the president’s lawyer, for instance.
@KM: Much as I agree with you, I can see where even an ethical lawyer might see the argument as sufficiently legit. IANAL, but the only precedents I’m aware of are the OLC decision and English common law sovereign immunity, which leaks into US law as governmental immunity. Both redound to immunity.
I frequently argue that conservatism is a psychological phenomenon, not political. Conservatives need a strong daddy. Someone like the Pope for instance, see below for relevance. I also comment that while they are able to logically think through consequences, their default is simple morality. We need a strong daddy, so strong daddy must be legal.
Silly as that sounds, I suspect it’s exactly Barr’s “reasoning” on the matter. It’s emerging that he’s at best one degree of separation from Opus Dei. The Opus Dei of the Dan Brown novel is probably exaggerated, but as they’re secretive, who knows. In any case, Barr seems to be a theocrat, and may well share the weird idea that Trump is God’s chosen vessel.
@Doug Mataconis:
That’s the one I’m trying to track down. As formulated there (and everywhere else I’ve seen), it’s not an argument — it’s an assertion. An argument would have intermediate steps between premise and conclusion. To me, the harm to the President (or the Presidency) from being indicted is obviously greater, and of a different character, than the harm from being investigated.
OT: The Trumps have put their D.C. hotel on the market. Eric says they’re doing it because so many people have objected to the money they make off it. Assuming this isn’t the real reason, I wonder how this ties in with the Trump name suddenly vanishing from the skating rink?
@DrDaveT: The argument, as I understand it, is that the prez is so critical to the functioning of government that he must not be distracted by being subject to interviews, depositions, conferences with lawyers, court appearances, etc. As opposed to being distracted by tweeting, golf, and holding rallies. The Trump administration would seem a sufficient argument against the OLC opinion.
To the extent the government really does depend on the continuous attention of the prez, isn’t this the Imperial Presidency, a problem we should fix?
@CSK:
CSK, master of comic understatement.
@gVOR08:
OK, I get that. But you can investigate someone without any of those things. Indeed, in many investigations the subjects of the investigation are not even aware that they are being investigated. There is no distraction. (Also, for a President already being investigated by Congress with an eye toward impeachment, the additional distraction of also being under criminal investigation would seem to be minimal…)
@gVOR08:
But of course.
I’m old enough to remember when the Cult members used to care about this.
@CSK: Saw that story today. Wondered if Michael Reynold’s prediction that Mr Trump is going to end up running off to some non-extradition place ahead of the sheriff, so to speak, is in the process of coming true.
@reid: IIRC, they take at least 2 votes, one preliminary vote right after arguments and another after discussing the case amongst themselves and attempting to persuade any waverers to their side. Sometimes they change their votes, again iirc, Roberts changed his vote in the ACA case.
@gVOR08:
So would the Clinton Administration, but Bill could walk and chew gum at the same time..
@Daryl and his brother Darryl: I’m old enough to remember when the Cult members used to care about this
It will be the most important thing in the world in 2021 if a Democrat wins the WH.
@DrDaveT: Refer back to Mr Mataconis’ language above: “The President IS the executive branch”. If the executive branch is called upon to investigate itself a bad process and bad product are guaranteed.
And if you are a conservative that is an excellent reason to forbid any investigations of a president. But not the Barr/Dunham criminal probe. If you don’t see the logic your brain has been rotted away by socialism.
@JohnMcC: Apparently the Trump palais in the Caribbean is on the market, too, although the article about that is undated, so it could have been sold earlier.
@Daryl and his brother Darryl: What kind of self-respecting attorney would work for Trump? I get that in a big firm, even the partners don’t always get to choose who they (as individuals) represent, but Trump representing Trump in any condition except not knowing who he is seems like a reach to me. This situation is a paradigm shift and the lawyer must be one of those ambulance chaser/class-action aggregation type lawyers who’d have no work at all if the Trumps of the world didn’t exist.
Colludy Rudy butt-dialed an NBC reporter…
https://www.nbcnews.com/politics/politics-news/rudy-giuliani-butt-dials-nbc-reporter-heard-discussing-need-cash-n1071901
Hilarity ensues…
Well, By God! We’ve finally got an answer for how an incoming President could legally make space for liberal justices on a Supreme Court packed with conservatives! Would this immunity for prosecution extend to aides who held the justices down while he took aim?
@Daryl and his brother Darryl:
Smooooth Operator
Do we call this the Netanyahu Defense?
@Daryl and his brother Darryl:
Rudy Guiliani, Assquire
I don’t see a valid link between not being subject to indictment and having immunity from investigation.
An investigation’s purpose is not to indict someone, but to find out what happened, or what is happening, within a given scope involving places, people, institutions, etc.
Consider diplomatic immunity. A diplomat cannot be indicted or prosecuted. But they can be, and have been investigated.
Besides all this, a presidential term is limited to 8 years maximum, and any president, or Trump in this case, can be indicted and prosecuted after their term is up. For this reason, a timely investigation is required, and I’d argue even a sealed indictment is permissible, to avoid statute of limitations issues.
And besides all of that as well, Congress has the power to impeach. This si spelled out clearly in the Constitution. No impeachment is possible without an investigation. At least no fair impeachment is.
I don’t believe that the canon of legal ethics requires that the zealous representation be ethical, merely non-criminal. Ironic, surely enough, but…
@DrDaveT: You’re right about it being an assertion, but it’s a reasonable one given that the purpose of investigating crime is to lay charges. If no charges can be laid, there’s no point in investigating. Obscene, granted, but a reasonable assertion none the less.
In the alternative, one could also assert that if the activities involved either don’t carry a statutory limitation (say, for example, shooting someone on Park Avenue) or a statutory limitation that will not expire during the President’s potential term, then an investigation would be proper because charges can be laid at a later date.
As John MCC notes, this isn’t new or unexpected.
It is the logical culmination of the various Unitary Executive theories floated during the GWB years, the Emergency Manager laws passed in Michigan, and the recent Flight 93/ Sohrab Amari rhetoric where the democracy and the rule of law are themselves now an impediment to conservative theology.
Now that conservatism sees the tide of public opinion shifting against it, it has chosen a path of “Rule or Ruin” where they intend to burn the village in order to save it.
@Kathy: Your statements are true, and even the lawyer arguing that Trump couldn’t be indicted for a murder today seems willing to agree that Trump might be investigated, indicted, and convicted of murder once he leaves office.
The “problem” however is the horde of politicians and partisans who argue that (a) Donald Trump can’t be impeached since he hasn’t been investigated and indicted for anything, and (b) The failure to investigate and indict Trump shows conclusively that he can’t or at least shouldn’t be impeached. These arguments are not law, but about 40% of the electorate will soon be shouting them at full voice all the livelong day with hopes of persuading the rest of us or at least of wearing out us anti-Trumpers.
@Just nutha ignint cracker:
Um, no. The purpose of investigating is to know who to lay charges against. In theory, it’s as much about NOT laying charges against the innocent as it is about convicting the perp. This is an improvement over the previous system, in which charges were laid without bothering with an investigation.
As Kathy noted above, the fact that the prime suspect has diplomatic immunity doesn’t prevent investigation. If nothing else, you need to confirm that the crime was committed by the person you can’t get at.
@mike shupp:
Not to mention they think their Cheeto should be entitled to get away with any crime.
reply deleted as pointless