Sarah Jones

Republicans Try to Argue Trump’s Indictment Might Not Be Constitutionally Legitimate

After arguing that Donald J Trump couldn’t be impeached for the attack on the Capitol, Republicans are now arguing that indictment of Trump might not be legitimate as impeachment is the proper remedy.

Remember when Republicans argued that a former President couldn’t be impeached? That was after they argued that an election should decide instead of an impeachment. The goalpost is always being moved like a slippery little eel that somehow manages to escape the media’s notice.

And today, I bring you: “Is the Trump indictment constitutionally legitimate?

Yes, you’ll be *shocked* to read that Republicans (of the Newsmax/Fox variety) think the president (if his name is Trump) is immune from indictment, given their heretofore absent calls to apply the law equally to all, including their own side of the aisle.

“It has long been thought that the president enjoys immunity for his acts while in office — at least for those acts connected with his official duties. The DOJ has historically agreed with this and has repeatedly endorsed the position that they cannot indict a sitting president,” Katie Cherkasky and Andrew Cherkasky opined in The Hill.

This should be embarrassing to even posit, because it comes down to: He’s ours so the law doesn’t apply and we think that your votes, especially those majority Black cities Trump’s team tried to disenfranchise, shouldn’t count when they don’t go our way.

To be clear, trying to overthrow the government one is leading is not an act connected to a president’s official duties. Nor is the crime of conspiring to prevent citizens from their right to vote and have it counted. Nor is the crime of pressuring officials to overturn an election.

The big tell here is that other presidents have all left office peacefully.

Many did not want to leave, but leave they did, because the peaceful transfer of power is the bedrock of this democracy. So no other president has ever interpreted their duties to include disenfranchising a majority of U.S. voters in order to hold on to power, inciting their supporters to threaten their own Vice President with a noose if he didn’t violate the constitution to keep the president in power, threatening the Speaker of the House, on and on it goes.

Yet, the writers are quite sure that actually, these were Trump’s official duties and proving otherwise will be quite difficult!

“In the present case, this is precisely the issue that has arisen. In order for a prosecution of this sort to even arguably move past the jurisdictional bar, the government would need to establish — maybe even beyond a reasonable doubt — that the acts in the indictment fall outside the scope of the president’s official duties. That will be tough for prosecutors.”

And hey, lol, joke is on you democracy, because you should have impeached him when you could have – now it’s too late. This “opinion” is brought to you by the same party that argued Trump shouldn’t be impeached because he’d already left office, by the way.

“The Constitution, though, seems to go much further. As a remedy for the commission of “high crimes and misdemeanors,” by a president, the Constitution calls for impeachment. The remedy of impeachment is the only one delineated in the Constitution. The indictment in this case, of course, follows a failed impeachment for the same acts.”

Yes, that impeachment didn’t fail, though. It passed. The House passed the impeachment of Donald J Trump for “incitement of insurrection.”

Trump was impeached. He was not convicted in the Senate, because die-hard Trump Republicans, who had days before fled for their own lives during the deadly Trump attack on the Capitol, locked arms and refused to convict. While the evidence against Trump was undeniable and in fact they were present during the attack and knew that Trump had lost by 7 million votes to Joe Biden, they argued that the impeachment was not valid because Trump was no longer in office.

Courage is not a word we will ever be able to use about those lawmakers who betrayed their constituents and the most fundamental rights we have on this day. Those Republicans are guilty of giving Trump a pass after he incited what Wray labeled a domestic terrorist attack. Law enforcement officers died as a result of this attack.

A bipartisan majority voted to find Trump guilty, including seven Republicans. That number is the largest number of a president’s own party to ever vote to convict on an impeachment. Why did they do this if Trump trying to instigate a self-coup is part of a president’s duties?

The Senate ultimately fell 10 votes shy of the needed 2/3 to convict, and that is why Donald Trump is able to run for office again.

There’s more, but it’s along the lines of arguing, “The executive has a direct interest in and obligation to ensure fairness in the outcome of elections.”

The 81,282,916 voters who voted for Joe Biden would like a word about “fairness.”

They have a right to have their vote counted, and Donald J Trump tried to steal that right, even though he lost every relevant court case and was repeatedly told by his own people that he had lost the election.

Steve Vladeck said it best, “Nor is the ‘impeachment is the constitutionally proper remedy’ argument remotely persuasive coming from the same crowd that argued that a President couldn’t be impeached once he had left office. It’s basically ‘heads we win; tails you lose.’ Except that ‘you’ is the rule of law.”

He also pointed out (my bold), “The basic flaw in this piece—and this argument—is the unsupported assertion that the absolute presidential immunity #SCOTUS recognized in Nixon v. Fitzgerald extends to criminal prosecution. The Court was clear, repeatedly, that the immunity it recognized was from damages *only.*”

You will be again shocked to discover these same people who wrote this about the president not being indicted also argue that “The evidence seems to be mounting against Biden for bribery. Time will tell where this goes, but this host seemed to incorrectly think the claims have been debunked. Weird editorial decision for Fox.”

It was Donald J Trump who was impeached the first time for trying to extort Ukraine into manufacturing dirt on Joe Biden to help Trump in 2020. There is no evidence that Joe Biden has done anything remotely like what this author suggested, and in fact yesterday a report was released in which the very witness against Biden whom Republicans were touting to the rooftops admitted that he had NO KNOWLEDGE of Joe Biden doing anything wrong.

The facts are awkward for this crowd not because they are Republicans, but because being a Republican right now involves justifying the indefensible while trying to accuse Joe Biden, sans evidence, of the same things that Donald Trump actually did.

Something tells me that when it comes to President Biden, these same arguments put forward in defense of the most egregious allegations against Donald Trump will suddenly evaporate. After all, this party impeached Bill Clinton for lying about a sexual act but refused to convict Donald Trump (who lied about many sexual acts and was just found liable by a jury of his peers for sexual assault) in an impeachment over his attack on the United States.

The rule of law is the foundation upon which democracy rests, and when it is battered consistently like this it becomes clear that the only rule this one side abides is that they have all of the power to decide what is legal and what is not legal.

Heads we win, tails you lose, democracy!

Photo of what Republicans argue falls in the line of the president’s duties

Sarah Jones

Listen to Sarah on the PoliticusUSA Pod on The Daily newsletter podcast here. Sarah has been credentialed to cover President Barack Obama, then VP Joe Biden, 2016 Democratic presidential candidate Hillary Clinton, and exclusively interviewed Speaker Nancy Pelosi multiple times and exclusively covered her first home appearance after the first impeachment of then President Donald Trump. Sarah is two-time Telly award winning video producer and a member of the Society of Professional Journalists. Connect with Sarah on Post,  Mastodon @PoliticusSarah@Journa.Host, & Twitter.

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