A law professor grades the legal argument Trump's lawyer just made about presidential immunity: C or D

Donald Trump's lawyers argued a president could assassinate a political rival if Congress approved. A law professor said it was a ridiculous argument that would get a C or D grade. The appeals-court judges who heard the argument also seemed skeptical.


Law Professor Critiques Trump's Legal Argument

During an appeals-court hearing on Tuesday in the federal election-interference case against the former president, Trump's lawyer argued he had "absolute immunity" and couldn't be criminally prosecuted for actions he took in office.

Doron Kalir, a professor at Cleveland State University College of Law with expertise in statutory interpretation, is skeptical of that argument. He said, "If a student made the same argument, they would get anywhere between a C or a D for misunderstanding what the Constitution has said."

Questioning Presidential Immunity

The three judges on the Washington, DC, appeals-court panel expressed skepticism about Trump's argument. Judge Florence Pan presented hypothetical situations, including the possibility of a president ordering the assassination of a political rival without facing criminal prosecution.

Trump's lawyer countered that the president could only be prosecuted if he was first impeached by the House of Representatives and convicted by the Senate, suggesting that as long as enough members of Congress supported the president, he could not be prosecuted.

Constitutional Interpretation

Doron Kalir pointed out that the provision cited by Trump's lawyers in Article I, Section 3 of the Constitution did not support their argument. The provision states that a Senate conviction in an impeachment does not extend to criminal prosecution, but it does not exempt the party from indictment.

Kalir also noted that while Trump was impeached over his efforts to overturn the 2020 election, he was acquitted by the Senate. The provision in the Constitution was likely intended to prevent an impeached and convicted official from claiming "double jeopardy" and avoiding criminal indictment.


Legal Strategy and Possible Implications

While Trump's lawyer's argument may have been dismissed as ridiculous, it does not mean their strategy won't work. Kalir suggested that Trump's main goal appeared to be delaying the trial in order to gain enough time to potentially get reelected. This would allow him to attempt to pardon himself or dismiss the federal case, leading to further legal challenges.

From a legal perspective, the argument failed, but from a tactical perspective, it may have served its purpose in prolonging the trial. The outcome and potential consequences of this ongoing legal battle remain to be seen.