Or Your Lyin’ Eyes 👀

Trump filed a “Motion to Dismiss” in the DC case, and recently a response to the DOJ response (ed. note: this is all normal pre-trial practice, not “delay tactics.” Just because you never see motion practice in the movies doesn’t mean it isn’t a major part of trial procedure.). The thrust of the argument is that everything Trump did was within “course and scope” of the duties of his office, and so immunized from prosecution UNLESS he was first impeached and removed from office by the Senate.

You can’t make this stuff up.

The argument there, in a nutshell, is that impeachment prevents us from having a king (and here I thought it was the “take care” clause (which includes “taking care” to follow Art. 2, sec. 1, clause 2) because we can evict a President. But like a king, the President enjoys lese majeste and the droit de seigneur; unless, I guess, we have our own Cromwell who cuts the President’s head off. One begins to understand why Trump makes his lawyers still use the title “President” before his name in court.

The argument is that this language in Art. 1, sec. 3:

but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

means the POTUS is only liable after impeachment. Which, frankly, means removing the word “nevertheless” from that sentence. It’s pretty clear the intent of “nevertheless” is that impeachment is not a non-judicial judicial process resulting in a verdict that is stare decisis or double jeopardy to subsequent civil or criminal charges.

Except Trump wants it read as if that’s EXACTLY what it means.

It’s the “who you gonna believe? Me, or your Lyin’ eyes?,” argument.

But wait, there’s more! Trump argues that Nixon wasn’t prosecuted because…well, here, I’ll just quote it:

9 The Government relies on President Ford’s pardon of President Nixon, arguing that it presupposes that Nixon could have been prosecuted for acts he committed as President. Doc. 109, at 18. Not so. The fact that Nixon was never prosecuted—despite widespread public outrage and compelling evidence of wrongdoing—provides compelling evidence of the strength of the historical tradition against prosecuting former Presidents for their official acts, not its weakness. Moreover, this argument overlooks that much of the conduct at issue in the Watergate scandal—such as ordering the burglary of the Democratic National Committee headquarters—may well have been purely private acts, not shielded by immunity at all, thus necessitating a pardon. (Both of these points apply equally to President Clinton’s admitted perjury in the Paula Jones litigation, for which he was never prosecuted. Response, at 19.)

First, the response to DOJ’s argument is itself proof of the government’s point (Trump’s lawyers really suck!). Nixon was never prosecuted because Ford pardoned him practically the moment he was sworn in (I remember it well. I’m guessing Trump’s lawyers weren’t born yet.) The rest of that response collapses like a house of cards,l because of that error, though emptywheel sets the cards ablaze by noticing the argument that Nixon’s actions instigating Watergate were private, not official, and so not protected from prosecution. And Trump’s actions alleged in the DC indictment are, therefore, “official” how, exactly?

You can’t cut the baloney so thin it has only one side.

And that’s when it struck me: Trump is making Nixon’s argument. Nixon famously told David Frost, from the safety of Ford’s pardon: “When the President does it, it’s not illegal.”

Clarence Thomas might like that argument; but I don’t think even Alito would.

Trump’s lawyers really do suck.