A SUPREME TEST

 Today's paper is chock full of details reporting on the Trump claim in the District of Columbia Court of Appeals that he is immune from criminal prosecution for his conduct while president because he was not convicted by the Senate of any impeachment charge brought by the House. ( A victory on that defense would have a serious effect on all the criminal claims brought against Trump by Jack Smith, as well as those pending in the state court of Georgia.)

The basis for the immunity defense lies in Article I, section 3 of the Constitution:

Judgment in cases of impeachment shall not extend further than to removal from office, … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

I am familiar with the defensive claim because 50 years ago we raised it on behalf of sitting Vice President, Spiro, T Agnew. As I wrote in my memoir:*

"That paragraph certainly suggests that the party convicted by the Senate after impeachment by the House, could then be "subject to indictment…" That's a pretty powerful argument that the criminal indictment comes only after impeachment, but it's hardly conclusive. The word "then" is nowhere found in that clause of the Constitution, though we argued that it was implied.”

Based on that argument, we moved the court for a dismissal of the tax and bribery indictment of the sitting vice president. The government’s responsive brief, signed by Solicitor General Robert Bork, described the defense as "momentous and difficult” but nevertheless concluded that the Constitutional clause applied only to a sitting president, and not to a vice president, though they had both been elected on the same ticket, and received the same number of electoral votes. 

Bork’s rationale, in effect, adds to the overwhelming arguments against the Trump immunity claim. Bork concluded that a sitting president could not be indicted because of the weight of duties he had in managing the country’s national and international affairs whereas a sitting vice president had no such responsibilities, and therefore could be indicted, even though he had not been impeached.

 Bork was clearly wrong in suggesting a sitting President had a Constitutional immunity defense, but even applying his over-generous rationale to the current matter makes it plain that a former president, who obviously has no duties in the management of the country’s affairs, has no immunity whatsoever.

Our Agnew motion was never decided by a court. The government had other problems regarding serious leaks which led to a court decision giving us the right to depose government officials and members of the press. The pressure on Attorney General Elliot Richardson was so great that he agreed to a plea deal in which the vice president pleaded nolo contendere, resigned, and was guaranteed that the sentence would be a small fine.

Whatever its strength or weakness, the Agnew defensive immunity claim was about substance. The current Trump immunity defense is not about substance, but is about delay. I expect the District of Columbia Court of Appeals to make a prompt decision. I expect Trump then to seek an en banc hearing, which I expect will be promptly denied. In the end, the matter, will go to the Supremes and the real question there is how long will it take them, one way or another, to affirm the District Court decision and allow Judge Chutkan to try the case? 

Will the trial go forward before November 5, 2024? Or will the Supremes kick the can down the road and disgrace themselves once again?

A bientot.

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*My memoir is entitled “The Client Decides” and is available on
Amazon and Kindle.

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