Jan 9, 2024 - Politics & Policy

Trump's "Fifth Avenue" sequel

Screenshot via Fox News

Then-candidate Donald Trump famously remarked two weeks before the Iowa caucuses in 2016 that he could "stand in the middle of Fifth Avenue and shoot somebody" and he "wouldn't lose any voters."

On Tuesday, Trump's lawyer suggested in federal court that a president could order SEAL Team Six to assassinate a political rival and — unless he was impeached and convicted by Congress — be immune from criminal prosecution.

Why it matters: The two scenarios are provocative and hyperbolic, but they offer a useful window into the dueling political and legal realities in which Trump is operating.

  1. Trump commands an unprecedented degree of loyalty from the Republican Party, which has stuck by him through Jan. 6, two impeachments and four indictments.
  2. But the legal system — and in particular, the federal appeals panel weighing Trump's "absolute immunity" argument — appears to have far less tolerance for the notion that former presidents are above the law, even for their actions in office.

Driving the news: Trump, who attended today's hearing in D.C. in person, is seeking to toss out or at least delay his March 4 trial on federal charges related to his efforts to overturn the 2020 election.

  • Trump attorney D. John Sauer argued that Trump's actions surrounding the Jan. 6 Capitol riot were part of his presidential duties, and that impeachment and conviction by Congress are a prerequisite for prosecution.
  • But Trump's own lawyers noted during his January 2021 impeachment trial that he could be subject to future criminal liability, and several Senate Republicans voted to acquit him on that basis.

Zoom in: On Tuesday, the three-judge panel seemed deeply skeptical of the claim that former presidents cannot be prosecuted for actions that fall under their presidential duties.

  • "I asked you a 'yes' or 'no' question: Could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?" asked Judge Florence Pan.
  • "My answer is: qualified yes. There is a political process that would have to occur under our Constitution, which would require impeachment and conviction by the Senate," Sauer replied.

Between the lines: This is where Trump's "Fifth Avenue" worldview and legal arguments begin to converge.

  • Under Trump's reasoning, all it would take is 34 loyal senators to vote for acquittal in an impeachment trial and give that president unchecked power to commit crimes.
  • "I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law," a skeptical Judge Karen Henderson noted.

What to watch: In remarks after the hearing, Trump warned that there would be "bedlam in the country" if the indictment is allowed to stand, and that the Biden administration is opening "Pandora's box."

  • "When they talk about threat to democracy, that's your real threat to democracy," Trump declared.
  • Asked on his way out whether he would urge his supporters to refrain from violence "no matter what," Trump was silent.
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