Caught up in "The Donald's" world of chaos, Trump's lawyers desperately grasp for arguments (that don't exist) to support his claim of absolute immunity

Alina Habba

 

If nothing else, Tuesday's hearing on Donald Trump's claim that he enjoyed absolute immunity while he was president taught Americans the definition of  "Seal Team Six." Aside from that, the only thing we learned was that Trump's already shaky legal team now is so immersed in Trump's chaotic world that they made arguments that, as a matter of law, were dead on arrival, and as a matter of common sense, absurd on their face. For their trouble, the Trump lawyers took a pummeling in the press for making arguments they should have known were almost certain to fail.

How bad was it? All of the Trump lawyers took thumpings in various news outlets, but The New Republic (TNR) chose to focus on the shortcomings of Alina Habba, with the not-so-subtle headline "Trump’s Idiot Lawyer Tries to Defend “Murdering Rivals Is OK” Argument; Alina Habba once again puts her foot in her mouth." Ouch! And that's just for starters. TNR's Torri Otten goes on to write:

Donald Trump and his lawyers are presenting increasingly unhinged defenses of the former president’s claim that he should be immune from criminal proceedings, as his legal team appears to scramble to keep up the argument.

Trump’s lawyers presented his case for immunity to a federal appeals court in Washington, D.C., on Tuesday, and to say it went badly for Trump’s team is an understatement. At one point, lawyer John Sauer bizarrely argued that a president could face criminal prosecution—say, for ordering Seal Team 6 to assassinate someone—only if he had been impeached and convicted first.

Trump attorney Alina Habba, who seems to have a habit of saying things that actually hurt Trump’s various legal cases, tried to defend Sauer’s defense that evening. She argued that Judge Florence Pan, who asked about the Seal Team 6 assassination, was using “hypotheticals that do not currently exist.”

Otten found that to be just one of many head-scratchers to emerge from the proceedings. She writes:

“The real facts are so easy to win that we have to now argue the slippery slope argument of, ‘If he kills someone, will he be held accountable?’” Habba said on Fox News. “He didn’t kill anyone. He didn’t cause an insurrection. He didn’t get charged for it. But they’re using hypotheticals to frighten America.”

Saying that Trump hasn’t killed anyone—but he has the right to get away with it as long as Congress doesn’t impeach him—is a terrible argument. Pan’s question, moreover, was intended to demonstrate that there are certain cases when a president does not have immunity from criminal prosecution.

It’s also unclear what Habba meant when she said Trump “didn’t get charged for” causing an insurrection, because he has been—twice. Once when the House voted in January 2021 to impeach him for incitement of insurrection and again in August when special counsel Jack Smith indicted Trump for his role in the January 6 riot. (How wrongheaded were the lawyers' arguments on behalf of their "Orange" client? We will have more details on that in an upcoming post. The quick answer is "very wrongheaded.)

Trump himself probably deserves most of the blame for what some observers have called a case of lawyers " walking into a trap." Trump has proven over and over that he knows virtually nothing about governing (and probably cares even less), which might explain why his first term has been deemed a "failed presidency" by numerous experts (See here and here.) Writes Otten:

Trump has repeatedly argued that former presidents can’t be criminally charged for actions related to their official responsibilities. He did not explain how overturning an election was related to official presidential duties.

Despite insisting all day Tuesday that the immunity hearing had gone well, Trump launched into a social media rant that evening, during which he presented some wild defenses of his own. First, he said that losing immunity would prevent a president from enjoying “HIS OR HER ‘GOLDEN YEARS’ OF RETIREMENT” because they would be bombarded with lawsuits.

Memo to Donald: This case is not about civil remedies, such as lawsuits; it is about possible punishment for criminal acts. Trump apparently has so many legal cases on his plate that he can't tell them apart. Writes Otten:

Trump went on to say that if he lost immunity, then Joe Biden would too, hampering the latter’s ability to function as president. (Why is that supposed to matter? No evidence has come to light of Biden committing crimes, and he has put forth no claim of immunity.) Finally, Trump said that losing immunity would mean “‘OPENING THE FLOODGATES’ TO PROSECUTING FORMER PRESIDENTS.”

“AN OPPOSING HOSTILE PARTY WILL BE DOING IT FOR ANY REASON, ALL OF THE TIME!” he wrote on Truth Social. (Irony alert: Trump is the one who already has vowed multiple times to use a second term as an opportunity to prosecute perceived political enemies -- even suggesting he could make up cases against them. So much for longstanding U.S. policy that presidents are not to take part in charging or non-non-charging decisions of the U.S. Department of Justice. In other words, presidents are not prosecutors; the White House is not to be used as a launching pads for retribution campaigns that might, or might not, have any grounding in fact or law.

Otten provides this final note to ponder:

Trump, however, is the first president in history to face this many legal entanglements post-office, and the first to face charges of this nature.

In short, much about Trump's four years in office was abhorrent, and that probably explains why he spends much of his time these days in court, while conducting a presidential campaign that has him leading the Republican primary field, but still faces major hurdles on the horizon.