“Be careful what you ask for”: Experts warn Trump’s “immunity” filing could backfire with judges

Former President Donald Trump’s lawyers on Saturday asked a federal appeals court to toss his D.C. election subversion case, arguing that he has “presidential immunity.”

Trump’s lawyers in a 71-page filing to the U.S. Court of Appeals for the District of Columbia Circuit, argued that the former president’s actions to undo his loss following the 2020 election “constitute quintessential presidential acts” and “fell within his “official duties.”

“During the 234 years from 1789 to 2023, no current or former president had ever been criminally prosecuted for official acts. That unbroken tradition died this year, and the historical fallout is tremendous,” the filing argues. “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.”

The filing argued that Trump’s case should be dismissed because he was not convicted by the Senate in his second impeachment trial, claiming that being prosecuted constitutes double jeopardy even though he was charged with different offenses in the impeachment trial.

The filing asks the appeals court to stay the case if they disagree with Trump’s argument so that the Supreme Court could take up the issue instead.

The Saturday filing came a day after the Supreme Court rejected special counsel Jack Smith’s request to fast-track the case. Trump’s lawyers opposed Smith’s request, arguing that the matter should make its way through the appellate court process first.

Former U.S. Attorney Harry Litman predicted that the appellate court judges are not going to like Trump’s argument.

“I think the court of appeals is not going to be very welcoming of this general immunity argument. What he’s trying to say, basically, is he was acting as president not as a candidate, not trying to do anything wrong just looking out for the election integrity,” Litman told CNN.

“I don’t think that’s a position that’s going to fly,” he continued. “On the other hand, right now it does delay the start of the trial and in that sense, he gets an important advantage on one level.”

Litman predicted that Trump would try to delay the case further if his immunity bid is rejected, asking the full appeals court panel to hear the case before taking it to the Supreme Court.

“But if the court of appeals gives us a stay with a short fuse, which is just what the Colorado court did a few days ago, that will hand him in and that’s going to be the real lookout,” he said.

“Will they keep him from delaying?” he added. “They seem to be onto his game and worried about letting things trail along too long.”

Dave Aronberg, the state attorney for Palm Beach County, predicted the filing could backfire.

“I think now we know why Donald Trump didn’t want the Supreme Court to weigh in on this yet. It’s such a ridiculous argument. He knows he’s going to lose and this is all about delay. The courts will throw coal in his stockings after reading these briefs,” he told MSNBC.

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“He is essentially saying that once you are acquitted by the Senate, by a bunch of political cronies in the Senate, he will become a king — it’s a permanent get out of jail free card,” he continued. “That’s not how any of this works.”

Aronberg warned that “one thing judges don’t like is to be told they have no power.”

“That is what Trump is telling the courts. ‘Hey, you judges have no power over me. I can do what I want.’ By the way, be careful what you ask for,” he added. “If immunity like this, this absolute immunity applies to Trump, it would apply to Joe Biden. Joe Biden could say arrest Trump and then go through the impeachment and get acquitted and then the president for life. It’s not so funny when it happens to you, right?”