Acting on their belief that one of the most compelling citations in court is the judge’s own words, attorneys for the former President Donald Trump recently found themselves in an unfortunate situation when their argument backfired. In their appeal before the Supreme Court regarding Trump’s attempt at claiming absolute immunity, the legal team errantly used an old Minnesota Law Review article written by Justice Brett Kavanaugh to support their case.
The Trump team argued that “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.” They backed this up with Kavanaugh’s words from the aforementioned article, “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
However, their argument hit a major snag. The very same text, authored by Kavanaugh, they used as their evidence notably concludes that a former president can indeed face prosecution. The article continues beyond the cited line, stating “The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office.” This fundamentally undermines the legal argument they were making.
Ryan Goodman, a professor of law at NYU, pointed out in a CNN interview, that this could easily backfire on Trump. He suggested, “Kavanaugh was talking about why an incumbent president should not be distracted by ongoing criminal prosecutions or investigations… Kavanaugh I don’t think wants to be associated with this ‘absolute immunity’ argument that they’re making so it actually might turn him off.”
It would seem that the Trump legal team has found itself stuck in an uncomfortable position due to this misstep.