Trump's Immunity Defense is a Political Disaster

By arguing he is above the law, Trump is helping make the case against himself

On Tuesday morning, the D.C. Circuit Court of Appeals delivered what MIGHT be the final blow to Donald Trump’s farcical claim that US presidents should be above the law. The court unequivocally dismantled Trump’s argument that he could not be held accountable for his attempts to subvert the election, stating:

“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

The court’s stance is crystal clear: no individual, not even a former president, is beyond the reach of the law. 

Trump’s legal team attempted to defend his position during the hearing, but their argument quickly crumbled under scrutiny. In a revealing exchange, Judge Florence Pan exposed the flaw in Trump’s counsel's logic by posing a hypothetical scenario involving presidential criminality. The inability of Trump’s attorney to provide a satisfactory response underscored the weakness of their case.. As David Graham recounted in The Atlantic:

“Judge Florence Pan asked Trump’s attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. Sauer tried to hem and haw his way through an answer but ultimately stated that such a president couldn’t be prosecuted unless he was first impeached, convicted, and removed by Congress.

“But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan pressed. Sauer had no choice but to agree, because acknowledging any exceptions would have blown a hole in his argument.”

In addition to knocking down Trump’s arguments, the court also made it clear they weren’t going to let him stall the trial any longer. The court ordered Judge Chutkan to resume preparations for the trial by Tuesday unless the Supreme Court says otherwise. Legal experts seem confident in the D.C. Circuit’s decision, believing the Supreme Court is unlikely to intervene. Now, I’m not a legal expert, but I’m old enough to remember hearing similar talk surrounding Bush v. Gore back in 2000… remember that mess?

An adverse SCOTUS ruling would be a disaster, undermining the rule of law; it could also delay Trump's trial for his involvement in the events of January 6th, potentially pushing it past the upcoming election. From a political perspective, Trump has given Democrats a golden opportunity to hit him where he may be most vulnerable.

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The Opportunity

If there is one thing we know about Donald Trump it’s that he never lets anything go. He still takes time at his rallies to complain about the Mueller investigation into his campaign's ties to Russia. I know our collective sense of time might be warped, but that investigation began SEVEN years ago. 

Even if the Supreme Court rules against Trump or refuses to take up his appeal, he is never going to stop talking about why he should be immune from prosecution. Each missive is more unhinged than the last. Here’s what he posted on Truth Social (via an account that reposts his “Truths” to Twitter):

This reads like a bomb threat from a particularly illiterate person at the end of a coke binge. As a general rule, we should amend the Constitution to bar people who communicate in all caps from the presidency. It’s truly disqualifying.

In terms of politics, Trump’s insistence on immunity is not only politically self-sabotaging but also contradicts public opinion. The vast majority of Americans believe Trump has committed a crime. According to a recent Navigator Research poll, 63 percent of Americans — including 30 percent of Republicans — believe Trump has committed a crime. 

When you step back for a minute, this is a truly stunning stat. That poll paints a stark picture: a considerable portion of voters actually believe Trump has broken the law, yet they're still considering casting their vote for him come November. It's a puzzling contradiction. But here's the kicker: when the majority already see you as a wrongdoer, trying to pitch the idea of immunity becomes a tough sell. .

Also, and I find this very reassuring as an American, most voters oppose the concept that a president should be immune from prosecution. A PBS Newshour poll found that only 35% of voters support Trump having immunity from criminal prosecution from actions he took while in office.

We’re living in an era of extreme polarization where most issues tend to split the population right down the middle, with each side digging into their partisan trenches. It’s not often we come across an issue where the scales tip so heavily, with only 35% in favor and a significant 64% opposed. Trump’s staunch advocacy for the minority viewpoint presents us with a unique opportunity, and frankly, it's one we shouldn't pass up.

The Argument Against the Immunity Argument

Like everything else in politics, how we talk about it matters. Our political argument against Trump’s legal argument should be framed in the context of an overriding case against Trump. The best messages are the ones that feel the most obviously true. In this case, the core contrast of the election is that Trump is running for President to avoid accountability, punish his enemies, and help himself and his rich and powerful friends. We must turn the conversation towards accountability for the rich and powerful. Last year, Navigator Research tested a bunch of messaging about Trump’s first indictment. This one tested best, by far:

No one is above the law, not even a former president. When someone breaks the law, they should face repercussions. There shouldn’t be one justice system for everyday Americans and another for the rich and powerful where they pay no consequences for their crimes.

Most of us aren't crafting political ads; instead, we're engaging in everyday conversations with friends and family to persuade them. That's why it's crucial to highlight Trump's attorney's admission about Trump's belief that a president can't be prosecuted for murder. This powerful example cuts through the noise and resonates with everyone—well, maybe except Trump himself. 

Hopefully, the Supreme Court will deal with this issue in the coming days, but either way, we will have the opportunity to use Trump’s argument against him for the balance of the campaign.