Former president Trump’s lawyers argue that he is immune from criminal prosecution for official acts taken as president. Of the several theories they advance for this proposition, I have maintained that the weakest is the one they rely on as if it were their strongest. Toward the end of oral argument Tuesday morning, D.C. Circuit judge Florence Y. Pan illustrated the folly of Trump’s position. Pan is one of three circuit judges on the panel that is considering Trump’s appeal of District Judge Tanya Chutkan’s ruling that he lacks immunity.
As argued vigorously — if not very persuasively — by D. John Sauer, the Trump team posits that the Constitution creates presidential immunity from prosecution that is akin to double jeopardy. The defense argument rests on one of the Constitution’s impeachment clauses (art. I, §3, cl. 7), which provides:
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