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Trump's NY Lawyer Argues President Literally Above the Law

3 min read

Today, the efforts of Manhattan District Attorney Vance to subpoena Trump’s tax returns are before the Second Circuit Court. Before I make any further commentary, I’d like to direct everyone to the Twitter reporting of Adam Klasfeld, who should be everyone’s go-to first stop for reporting on the assorted major cases of this maladministration.

Representing Trump’s interests in this hearing is William Consovoy, and he has made some interesting legal arguments. Where by interesting, I mean batshit crazy.

Consovoy has asserted that a sitting president does not just have immunity to prosecution, but immunity to investigation in and form whatsoever, as any investigation would be a distraction and thus compromise his focus on the presidency. He has argued that the Watergate tapes case was incorrectly decided. 

In an effort to clarify this, Judge Chin asked whether this stance, if adopted by the court, would bar a prosecutor from investigating even crimes committed before the President took office, “no matter how heinous”. Consovoy answered that, yes, it would. After the court’s questioning got distracted by other topics, they circled back to this core idea, observing that “investigation” is more than just the in-court aspect. If Trump did as he suggested in the campaign, Judge Dunn inquired, and literally pulled out a gun and shot someone in broad daylight on Fifth Avenue, could the police investigate the issue? Or, indeed, do anything about it at all?

I bet a lot of you can already guess what Trump’s legal team’s position was. But I’d like to note that this sort of questioning trap, when a lawyer is presenting a novel or untested or just simply weird approach to a legal issue, isn’t strictly uncommon. “Well then, Mr. Lawyer, if we take that argument to its conclusion, aren’t you saying that this terrible thing would be okay, too?” It’s easy to be caught off-guard by that sort of thing. Competent lawyers will find some reason that the presented scenario is different that what you’re arguing in favor of. And, indeed, there are a lot of distinctions that could have been drawn between providing a prosecutor with tax records versus allowing the police to investigate a murder in broad daylight.

But you know that’s not what was argued, right? Because Trump, and through him, the people like Consovoy that are propping up this whole charade don’t believe in the American justice system, or anything at all like the America we know. They believe that Trump is “sovereign”, a literal king in the medieval sense, whose rule and word cannot be questioned.

In front of the Second Circuit, Consovoy said that no, if Trump shot a man to death on Fifth Avenue the police could do nothing at all, because their actions would constitute criminal investigation, and the sitting president is absolutely immune.

I’ll update this [EDIT: or post a followup diary, if the delay makes just an update unreasonable, which seems increasingly plausible!] when the Second Circuit rules (smart money, they tell Consovoy to pound sand), but the judges and both sets of lawyers have already agreed that this is all bound for SCOTUS, so today’s outcome is slightly less than meaningless, except to the extent that it shines a light on what Team Trump actually believes the Presidency represents.

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