Appealing to unreason: Donald Trump's lawyers argue he can't be prosecuted? | Anderson

Former President Donald Trump is facing – by the most recent count – 91 felony charges of various kinds, many connected to his alleged attempted subversion of the electoral process in reversing his failed bid for a return to the White House 2020.

Trying to keep up with his trials is becoming increasingly complex and cumbersome, even for those determined to delight in his troubles. But Trump has now made the argument that he is constitutionally protected from any prosecution of any of the crimes he may have engaged in during his presidency.

The weird new take on the Constitution emerged during an appeal hearing last week. The first time Trump had engaged a court with this silly idea it was batted aside: “Whatever immunities a sitting President may enjoy," U.S. District Judge Tanya Chutkan wrote, “the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Trump appealed, and the appeals panel questioned the thing further. The Washington Post reported that Judge Florence Y. Pan “asked [Trump’s attorney] John Sauer if a president could be criminally prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Such a scenario — ordering the military to do something — would fall under presidential duties. But having a rival murdered would also be a clear violation of the law.”

Sauer argued that [Mr. Trump] could not be prosecuted – unless he had been tried and convicted in the Senate. Politico reported that Judge Pan’s colleague, Judge Karen Henderson, addressed Trump’s lawyers, saying, “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.” 

Indeed.  Yet this seems to be exactly what he is arguing.

Once we remove the absurdity of the idea, the question arises as to whether what Trump is accused of doing is, actually, just as awful as an elite squad of professionals being ordered around like common gangsters. The problem, constitutional and otherwise, is that what Trump is alleged to have engaged in is nothing less than the intentional crippling of the American system of elections and the peaceful transfer of power that has endured in the U.S. since we became a republic. And this, surely, is not a protected act.

It is worth noting that Sauer had gone on to explain that of course the president would have been tried and convicted in the Senate if he had committed murder – leaving unsaid the most telling aspect of the argument: that attempting to sabotage our system of government apparently did not – or had not - risen to the occasion.

While the idea that U.S. Navy Seals would “liquidate” a political rival at the behest of Trump is preposterous, the fact is that an army of people under his command seemed very willing to assist with wrecking the American republic’s most cherished institutions and values.  Which is why many of them are on trial.

More from Bruce Anderson: Want an Article 5 Convention to change the Constitution? Here come the clowns

The entire mess is unprecedented. No former president of the United States has ever had to make such an argument before because no prior former president has been accused of committing any crime in office, much less the horrendous accusations lodged against Trump.

I was interested in Judge Henderson’s note about the oath to “take care that the laws be faithfully executed,” and it seems to me that the coming trial will do just that.

As with any American citizen, Trump is innocent until proven, by the evidence, that he is criminally culpable. The courts have yet to have their say. But the idea that the courts should be denied this say is to place Trump above the law. And no American citizen, whatever their office, is entitled to that.

R. Bruce Anderson is the Dr. Sarah D. and L. Kirk McKay Jr. endowed chair in American history, government and civics and Miller distinguished professor of political science at Florida Southern College.  He is also a columnist for The Ledger and political consultant and on-air commentator for WLKF Radio in Lakeland.

This article originally appeared on The Ledger: Appealing to unreason: Donald Trump's and the courts | Anderson