Brutal Immunity Decision Quotes Brett Kavanaugh Against Trump
A Washington, D.C., appeals court issued a blistering takedown Tuesday of Donald Trump’s arguments that he has “presidential immunity” against criminal proceedings—including a savage citation from Supreme Court Justice Brett Kavanaugh.
Trump has repeatedly insisted that he cannot be prosecuted for trying to change the 2020 election results because he has presidential immunity. One of his arguments is that the separation of powers prevents state and federal officials from judging official presidential acts. He claims that the 1803 Supreme Court case Marbury v. Madison established this precedent.
But “former President Trump misreads Marbury and its progeny,” the three-judge panel said in its ruling. “Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”
The judges then quoted one of those progeny cases, the 1882 ruling in United States v. Lee. The majority opinion in that case stated, “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
What’s more, “that principle applies, of course, to a president,” the judges wrote, citing Kavanaugh’s concurring opinion in the 2020 case Trump v. Vance, in which the Supreme Court ruled that Manhattan District Attorney Cyrus Vance could access Trump’s tax records as part of his investigation into alleged hush-money payments to Stormy Daniels.
The judges’ decision to cite Kavanaugh, even fleetingly, is both clever and devastating. Trump and his legal team have previously hinted that the justice, a Trump appointee, owes the former president some sort of loyalty. But the appeals court ruling shows that Kavanaugh operates independently from Trump.
Trump is expected to appeal the ruling to the Supreme Court. He has until Monday to do so. If the high court takes up the question of his immunity, it is starting to look increasingly likely that the justices will concur with the lower courts.