President Trump’s lawyer argued in court on Wednesday that he should, as president, be immune from criminal prosecution — even if he murders someone in broad daylight with a gun.
Trump’s lawyer: If Trump shoots someone on 5th Avenue, “nothing could be done”
Trump’s lawyer just told a federal appeals court that a sitting president is above the law.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
The argument was made as part of Trump v. Vance, a case asking whether Manhattan prosecutors can subpoena Trump’s tax records as part of an ongoing criminal investigation. In the case, as Judge Victor Marrero explained in an opinion, Trump’s lawyers argued that “the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind.” (Marrero rejected that argument.)
On Wednesday, the United States Court of Appeals for the Second Circuit heard Trump’s appeal of Marrero’s decision. During that hearing, Trump lawyer William Consovoy confirmed just how far his argument goes. In response to a question by appellate Judge Denny Chin, Consovoy argued that Trump is immune from criminal investigation even if he were to shoot someone on Manhattan’s Fifth Avenue:
The question is a callback to Trump bragging in January 2016 that he could “stand in the middle of Fifth Avenue and shoot somebody and ... wouldn’t lose voters.”
Consovoy did concede that “once a president is removed from office” then he could be subject to criminal investigation. “This is not a permanent immunity,” in Consovoy’s words.
Nevertheless, when Chin asked whether “nothing could be done” while Trump remains in office, Consovoy stated, “That is correct.”
To be clear, Consovoy is not correct about the law. As the Supreme Court explained in Clinton v. Jones (1997), “it is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States. Moreover, the Court added that “we have never suggested that the President, or any other official, has an immunity that extends beyond the scope of any action taken in an official capacity.”
Thus, because murdering people on Fifth Avenue is not part of the president’s official duties, Trump’s immunity argument would likely fail. Similarly, because the financial information sought by prosecutors also does not relate to Trump’s official duties, Trump’s claim of immunity in Vance is weak.
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