Former U.S. Attorney Joyce Vance didn’t quite say what Harvard Law star Laurence Tribe said in assessing the DC Circuit Court of Appeals decision to deny former President Donald Trump‘s claim of total presidential immunity in the federal election subversion case against him.
Tribe opined on X that part of the District Court’s decision — notably that aspect pertaining to “Trump’s ‘tortured interpretation’ of the Impeachment Judgment Clause” — amounted to an “evisceration” of Trump’s claim by the Court, calling it “especially devastating.”
[NOTE: Tribe, who conservative former U.S. Court of Appeals Judge J. Michael Luttig has called “the nation’s preeminent constitutional scholar for the past half-century,” is not known for hyperbole.]
The DC Circuit’s evisceration of Trump’s “tortured interpretation” of the Impeachment Judgment Clause (pgs. 41-50) is especially devastating. Yet even there, while exposing the “logical fallacy” (pg. 44) on which it rests, the Court treats the former president’s argument with…— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) February 6, 2024
But Vance, while not reporting an “evisceration,” did write something that Tribe didn’t publicly say — or at least not yet. Vance asserts that the Circuit Court’s decision was written in a way that renders its decision “a straight arrow that should be easy for the Supreme Court to affirm” on appeal.
According to Vance, the key SCOTUS-aimed passage in the decision — the one that straightens the arrow — is this:
“For the purposes of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Vance contends that “with that pronouncement, the court neatly sidesteps the issue of whether a sitting president has immunity from criminal prosecution while he’s in office.”
The decision as written then allows that some executive immunity “may have” protected Trump from prosecution while he was in office, but establishes that this scenario isn’t relevant to the case before the court since Trump is out of office.
Judge Tanya Chutkan, in the decision that was affirmed by the appellate court, wrote:
“If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect.”
Total immunity removes that benefit, the appellate court concurred. The Supreme Court may choose not to hear an appeal even if Trump requests it — four Justices must say yes for it to be considered. For Chutkan’s and the appellate court’s decision to be struck down, five Supreme Court Justices would subsequently have to decide that Chutkan was wrong when she wrote the above.