About what you wished for

So, appeals courts ostensibly (let's not get too deep into THOSE weeds) examine a lower court ruling for error.  They don't just change the outcome because they prefer a different one.  Trump lost today in Manhattan district court, and lost decisively.  The question is: where will the appellate court find error?

Many places, if they so choose. I don't presume to defend the trial court's opinion or to divine the reasoning of the panel of the Second Circuit that will hear this appeal.  But some of what the trial court said is interesting, and on general principles, it raises issues higher courts might be reluctant to disagree with.

U.S. District Judge Victor Marrero described Trump’s argument that it’s illegal to investigate the President “extraordinary,” saying that it would lead to immunity for “any conduct, at any time, in any forum, whether federal or state, and whether the President acted alone or in concert with other individuals.”

Marrero went on to address the vast implications of Trump’s argument. A President immune from any kind of criminal process would, the judge wrote, “frustrate the administration of justice,” allowing “both the President and any accomplices to escape being brought to justice.”

Trump had based his argument in part on the notion that a criminal investigation would hinder the performance of a President’s duties to an unacceptable degree. But Marrero dismissed that concern, saying “certainly lengthy imprisonment upon conviction would produce that result” and that Trump’s “sweeping” theory lacked support in the Constitution.

I'm quoting the TPM article, rather than reading the 75 page opinion carefully to subject it to analysis.  Let's stick with broad general statements here, not the legal minutiae.

So, the President's argument is that he is the President, and he is protected from examination.  I know Justice Kavanaugh has remarked that U.S v. Nixon, the case that forced Nixon to release the White House tapes, should be revisited.  It may be Trump is aiming his argument at that Justice.  No matter, it gets shredded in the trial court.  But is there error in concluding the argument presented to the trial court would lead to immunity for “any conduct, at any time, in any forum, whether federal or state, and whether the President acted alone or in concert with other individuals.”  I suppose there could be, if you hold that impeachment is the only remedy for a runaway President, but any other official who must be removed by impeachment under the Constitution can be tried for criminal violations, and then impeached to get them out of office.  It's a recognized legal principle that Art. III judges, for example, can be convicted of a crime but must be impeached if they don't resign from the bench after such a conviction.  There's also the Agnew case, where he faced state criminal charges and resigned, then pleaded no contest to the charges.  Sauce for the goose is sauce for the gander, and where was the Constitutional infirmity in that action?

A President immune from criminal process, when the V.P. isn't, is a rather odd Constitutional conclusion, to say the least.  And if a President wins re-election, is he then protected from criminal process if the statute of limitations is not tolled until his 2 terms are up?  Again, where is the error, pray?

But this is where it gets really interesting, because the lawyers just turned the arguments over to the client, something lawyers should never do:

Undergirding Marrero’s ruling was a rejection of the Justice Department’s Office of Legal Counsel opinion that a sitting president cannot be indicted. Marrero surveyed the OLC memo, as well as previous opinions written by onetime Supreme Court nominee and conservative movement icon Robert Bork.

Marrero dismissed the view that a president is “not subject to criminal process” as relying on “scant and inconclusive” grounding in the Constitution. He struck out at the theory as not coming “from a real case presenting real facts” but rather “from an unqualified abstract doctrine conclusorily asserting a generalized principle.”

“No persuasive argument could be made that an indictment of the President while in office, along with the co-conspirators…would present the severe burdens and interferences with the discharge of the President’s duties that the DOJ memos interpose,” he wrote. “Balanced against the prospect of a number of powerful individuals going free and escaping punishment for serious crimes by virtue of the President asserting absolute immunity from criminal process, an alternative that would allow the indictment and prosecution to proceed under these circumstances may weight against recognizing a categorical claim of presidential immunity.”

Trump threw in the OLC opinion that bound Robert Mueller's hands.  That's not the "Get Out of Jail Free" card Trump imagines it is.  First, the opinion is akin to a state attorney general's opinion.  The Texas Attorney General is authorized to issue opinions on certain legal matters, such as what is required under the state's Open Records Act.  Agencies and government entities subject to the act are subject to other laws, too, such as those concerning privacy.  It's a regular matter to seek an opinion of the AG on an Open Records request, and that opinion is binding unless a court opinion overrules it (or simply decides differently).  The OLC opinion is that kind of opinion; binding on the Administration (and so the FBI, among others), but only until a court decides otherwise.

A court just decided otherwise.  It didn't have to, but Trump brought it up.  If this ruling stands, is even determined to be relevant to the opinion of the appellate court, the OLC opinion on prosecuting a sitting President is tossed in the trash can.  Unless the Supreme Court specifically upholds that opinion, then (assuming the 2nd Circuit upholds the trial court on this point), this will very much be a case of "Be careful what you wish for, because you might get it."

But the primary question going forward is:  where is the error?  Kavanaugh may want to side with Trump, but I don't think Roberts will want to.  And if Trump takes this all the way to them, he might live to regret it.