Trump's legal defense against election claims could be his undoing – USA TODAY
Former President Donald Trump never hesitates to take contradictory positions if it helps his cause.
He brags about appointing Supreme Court justices who overturned the right to abortion. But he won’t say, while running again for president, what the federal or state governments should do now on that issue.
He complains that America’s southern border is in crisis. But he used his political sway over some Republicans in Congress this week to kill bipartisan legislation on immigration reform and border security.
Does Trump believe in anything other than his own survival and success? The evidentiary record says no. But his proclivity to have things both ways just caught up to him in court.
A three-judge panel from the D.C. Circuit Court of Appeals called him out Tuesday for making one argument during his 2021 impeachment trial in the U.S. Senate and a completely antithetical argument now in his criminal case on trying to overthrow the 2020 presidential election after his loss to Joe Biden.
And I suspect the U.S. Supreme Court will notice that contradiction, which could be trouble for Trump as soon as Monday. I’ll come back to that.
At issue – Trump’s lawyers successfully defended him in the 2021 impeachment proceedings by insisting the Senate was the wrong venue to consider punishing him for trying to overturn the 2020 election. They claimed then that criminal courts were built for that.
A new team of Trump lawyers now argue in the courts that impeachment in the Senate was the correct venue all along to hold him accountable in the attempt to overturn the election, and that the former president is entitled to immunity now for what he did in office.
The judges, on page 34 of the 57-page ruling, cite Trump’s impeachment lawyers to clearly define how he’s trying to have it both ways on accountability.
Here was attorney David Schoen, defending Trump in the Senate on the first day of his second impeachment on Feb. 9, 2021: “We have a judicial process in this country. We have an investigative process in this country in which no former officeholder is immune. That is the process that should be running its course.”
And here was Trump lawyer Bruce Castor arguing in the Senate impeachment trial three days later: “There is only the text of the Constitution, which makes very clear that a former president is subject to criminal sanction after his presidency for any illegal acts he commits.”
There it is – word-for-word proof from Trump’s own lawyers that he’s vulnerable to prosecution for what he did while president, after the voters sent him home to sulk at Mar-a-Lago in Florida. One team of Trump lawyers was shooting down, ahead of time, the next team’s tactics.
One of those lawyers, Castor, told me this week he doesn’t see a problem with two teams of Trump lawyers making conflicting arguments.
“It is well recognized in the law that lawyers may take alternative positions depending on the circumstances,” Castor said.
Wendy Weiser, vice president for democracy at The Brennan Center for Justice, agreed with the judges that the conflict is telling. She considers the arguments Trump’s lawyers made in the criminal case “not really serious.”
“Their arguments were designed in the moment to evade accountability,” she said.
And Weiser was encouraged that the judges emphasized calling the former president “citizen Trump” in what she called a “slam-dunk” ruling.
“He is not president,” she said. “He is not a king. He is citizen Trump and subject to prosecution just like the rest of us. There is nothing special about him that would avoid that fundamental notion.”
Trump responded Tuesday with a post on his website Truth Social, deriding this week’s appellate court ruling as “Nation-destroying” while declaring that presidents “must have Full Immunity in order to properly function and do what has to be done for the good of our Country.”
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He followed that less than half an hour later with a fundraising plea texted to supporters that said, “Moments ago federal judges just ruled that I have no presidential immunity.”
Trump trying to cash in on the news was as predictable as him contradicting his own defense.
The judges clearly didn’t buy Trump’s claim of immunity, citing “recent historical evidence” that other presidents – including Trump, via his impeachment lawyers – “have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency.”
They noted that President Richard Nixon was vulnerable for criminal indictment after he resigned in the Watergate scandal, something his vice president, Gerald Ford, made clear when he took over and pardoned his old boss.
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That 1974 pardon clearly said: “Nixon has become liable to possible indictment and trial for offenses against the United States,” which could upset the “tranquility” his resignation created.
And the judges cite President Bill Clinton agreeing in the closing hours of his second term to a five-year suspension of his law license and a $25,000 fine in return for a special counsel agreeing to not prosecute him for providing false testimony under oath.
What a rogues’ gallery: Nixon, Clinton and Trump.
Nixon resigned to avoid being tossed out of office. Clinton took the humiliating deal on his way out the door. But Trump is still trying to get back to the White House. His campaign said Tuesday that he will appeal the ruling.
The three-judge panel boxed him in, setting a Monday deadline to respond, with a clear eye to the long history of trying to stall legal cases. Trump could ask the full D.C. Circuit of 11 judges to reconsider the case, but that would end a delay in the case moving ahead at the trial level.
That goes against everything Trump really believes about civil and criminal courts. His core value has always been delay, delay, delay.
He could also start the process of an appeal to the U.S. Supreme Court, chock full of justices he appointed, and the delay at the trial level will continue.
But he has no guarantee there. The justices could refuse to even hear the case.
That’s what they did in February 2021 with a handful of remaining legal challenges to the 2020 election results, sending Trump and his allies away with no hearings.
And this cuts across everything Trump really believes about loyalty. His core value here is he deserves loyalty in all things, at all costs.
With the walls of this court case finally closing in on Trump, and November’s election looming, he needs a save from a Supreme Court that might not have an interest in helping.
And his about-face defense tactics might have provided the justices with the perfect pretext to turn him away.
Follow USA TODAY elections columnist Chris Brennan on X, formerly known as Twitter: @ByChrisBrennan