- Trump's lawyers argued a president could assassinate a political rival and get away with it if Congress approved.
- A law professor told Business Insider it was a "ridiculous" argument.
- The appeals-court judges who heard the argument also seemed skeptical.
Lawyers for former President Donald Trump made the legal argument today — in a real courtroom, before actual US judges — that a president can order the military to assassinate his political rival and not be prosecuted for it as long as Congress is cool with it.
Doron Kalir, a professor at the Cleveland-Marshall College of Law at Cleveland State University with expertise in statutory interpretation, is skeptical of that argument.
"If a student made the same argument, they would get anywhere between a C or a D for misunderstanding what the Constitution has said," Kalir said.
During an appeals court hearing on Tuesday in the federal election interference case against the former president, Trump's lawyer argued that he has "absolute immunity" and cannot be criminally prosecuted for actions he took in office.
The three judges on the Washington, DC, appeals court panel expressed skepticism, with Judge Florence Pan offering up hypothetical situations, including: "Could a president order SEAL Team Six to assassinate a political rival" and not be criminally prosecuted?
Trump's lawyer D. John Sauer said the president could only be prosecuted if he was first impeached by the House of Representatives and convicted by the Senate. Meaning, that as long as enough members of Congress supported the president, he could not be prosecuted.
Kalir said that not only does the Constitution not say that, it says the exact opposite. He pointed to the provision Trump's lawyers have cited in Article I, Section 3:
"Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
Not only does the provision not say a Senate conviction is required for a criminal prosecution, but that regardless of an impeachment conviction, the party can be indicted, according to Kalir.
Trump was, in fact, impeached over his efforts to overturn the 2020 election after the January 6, 2021, Capitol riot. However, he was acquitted by the Senate.
Kalir said that provision in the Constitution was likely intended to ensure that an impeached and convicted official could not claim "double jeopardy" to argue that a Senate conviction means they cannot be criminally indicted.
If you were following Trump's lawyer's argument, it would mean the president could get away with all sorts of wild behavior as long as Congress approved.
As for a president being entitled to "absolute immunity," legal experts have frequently dismissed the idea. Kalir noted that former President Gerald Ford preemptively pardoned former President Richard Nixon, meaning it was understood Nixon would be open for criminal prosecution after leaving office.
Still, just because Trump's lawyer's argument may have been ridiculous, it does not mean their strategy won't work. Kalir noted that Trump's main goal appears to be delaying the trial as much as possible, perhaps until he can get re-elected — at which point he could try to pardon himself or dismiss the federal case altogether, more actions that would lead to legal challenges.
"From a legal perspective, they failed, but from a tactical perspective, they may have won," Kalir said.