(Photo by MELINA MARA/AFP/Getty Images)
Listen, I get the impulse. When briefing and arguing before a judge, one of the most compelling citations you can use is the jurist’s own words. And that’s only supercharged in front of the Supreme Court, when the justices have the power to turn their musings into law. But beware! Sloppy research can lead to an embarrassing situation — as Donald Trump’s attorneys are finding out.
Trump’s attempt to get absolute immunity has hit the Supreme Court. His crackerjack legal team is arguing, “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.” To advance that point, the MAGA attorneys cite an old Minnesota Law Review article authored by none other than Justice Brett Kavanaugh. They cite the line “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”
But there’s a pretty big problem here — the evidence they cite doesn’t conclude for them. Kavanaugh specifically wrote that a FORMER president, you know, like Donald Trump, CAN face prosecution. The article continues past what Trump’s team cites to say, “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.” Which very much cuts against Trump’s argument.
As NYU Law professor Ryan Goodman noted on a CNN appearance, this could easily backfire on Trump.
“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.”
2/ Here’s my discussion with @ErinBurnett on how Trump’s brief to Supreme Court on presidential immunity might be smart to cite Justice Kavanaugh’s prior writing – but not if it takes his writing out of context.
Kavanaugh wrote a former president is not immune from prosecution pic.twitter.com/TDNtiH3rtH
— Ryan Goodman (@rgoodlaw) March 20, 2024
The Trump team really stepped in it with this one — and what a public way to fail.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @Kathryn1@mastodon.social.