It has come to light that lawyers for former President Donald Trump have argued against charging a president criminally in a bombshell Supreme Court filing — by quoting Trump-appointed Justice Brett Kavanaugh via Mediaite.
It was seven weeks after a stunning appeals court hearing at which Trump’s attorney argued that a president could order SEAL Team Six to assassinate a political rival and not face prosecution unless he were impeached and convicted first, the Supreme Court announced it will take up that issue on appeal — and hear arguments on April 25.
Trump’s legal team submitted a lengthy filing Tuesday demanding “absolute immunity” for Trump in an appeal of an issue that has lost twice before, and which contains many of the same or similar arguments:
A former President enjoys absolute immunity from criminal prosecution for his official acts. Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers. From Marbury through Fitzgerald, and beyond, this Court has consistently held that Article III courts cannot sit in judgment directly over the President’s official acts, whether before or after he leaves office. A fortiori, the courts cannot sit in criminal judgment over him and imprison him based on his official acts.
Absent, however, is any mention of SEAL Team Six or assassinating domestic political rivals.
But the filing does rely — as Maggie Haberman and others have noted — on several quotes from Kavanaugh’s old law review articles:
In short, “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.” Brett M. Kavanaugh, Separation of Powers During the FortyFourth Presidency and Beyond, 93 MINN. L. REV. 1454, 1461 (2009).
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“Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act.” Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2159 (1998). This observation applies to former Presidents as well—and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him.
Multiple fact-checkers have debunked Trump’s claim that President Joe Biden has anything at all to do with prosecuting Trump.
