Absolute Immunity Is Absolute

BREAKING: Trump is seeking to stall his NY sentencing by claiming today’s immunity opinion somehow applies to his convictions for purely personal acts like 2016 election interference and creating phony business docs in 2017

It won’t work—a thread (1/x)https://t.co/SHHmMPbbfj

— Norm Eisen (#TryingTrump out now!) (@NormEisen) July 2, 2024

This will get interesting.

In his opinion Judge Hellerstein found that Trump "has expressly waived any argument premised on a theory of absolute presidential immunity"

So it won’t work this time either (3/x) pic.twitter.com/Om1RFcPmPT

— Norm Eisen (#TryingTrump out now!) (@NormEisen) July 2, 2024

I said earlier that immunity is jurisdictional. It is, but in one of those interesting distinctions in the law, it’s not jurisdiction. 

Let me explain.

Jurisdiction is fundamental. You cannot waive jurisdiction. If you raise the issue for the first time on appeal, that’s not too late. Jurisdiction cannot be waived. It can even be raised by any court in the chain of appeals, sua sponte, as the lawyers say. Jurisdiction means the court has authority; or it doesn’t. You can’t get more fundamental than that.

Trust me.

Immunity is a matter of jurisdiction. Consider the criminal prosecution of Bill Cosby, based in part on his own statements. The Supreme Court (of the state) threw out the conviction because Cosby waived his 5th Amendment rights on the assurance his words would not be used against them. He did not, in other words, knowingly waive his immunity. The point being, he could have. But having been conned, the court lost jurisdiction over his prosecution. It could not be party to the misrepresentation.

Immunity is personal, not institutional. Immunity denies jurisdiction; but jurisdiction can’t be waived. Immunity can. You can waive your 5th Amendment immunity. You can waive any claim of absolute immunity. Jurisdiction is always there. Immunity is there only if it is raised by the person immunized. And once waived, you don’t get it back. Not in that case, anyway.

If, as the tweets say, Trump did, then…he’s toast. And the issue never comes up for review, not even by the Roberts Court. The majority can do a lot of damage; but they can’t change the gravitational constant of the universe. Or suspend due process and equal protection and equity and procedure, all for Trump and “just this once.”

That would be an opinion no one would regard as valid.  Well, everyone except Thomas and Alito. There’s always somebody.