(NewsNation) — Former President Donald Trump was in a federal courthouse Tuesday in Washington, where his lawyers argued he is immune from prosecution, an argument one former federal prosecutor says is “laughable.”
Trump’s attorneys argued the upcoming trial for charges related to the 2020 presidential election and Trump’s alleged role in the Jan. 6, 2021, Capitol riots should not happen because those things occurred while he was in office.
Trump’s legal team has claimed presidential immunity before, but a judge rejected it, and the U.S. Supreme Court declined to take up the matter for now.
How did it play in court this time?
“He’s obviously not immune, and I think you don’t need to be a lawyer to understand that,” former federal prosecutor Renato Mariotti said Tuesday on “CUOMO.” “I think on its face it’s laughable, and it’s actually not in accordance with the text of the Constitution. If you look at the impeachments clause … I think if you took all the politics out of it and had a bunch of people just look at the plain language of it, I think it’s fairly clear that the framers of the Constitution did not intend for that absurd result to occur.”
Article 1, Section 3 of the Constitution states that in the event of an impeachment, the judgment handed down by the Senate may not extend further than removal from office. However, it stipulates “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Trump’s lawyers argued former presidents can only face prosecution if they are first impeached and then convicted by the Senate. Although Trump was impeached during his presidency, he was never convicted by the Senate.
Robert Ray, one of Trump’s attorneys in his first impeachment trial, disagrees with Mariotti’s assessment that the argument is “laughable.”
“The Constitution doesn’t say whether convicted or not the party remains liable and subject to criminal prosecution, indictment, trial, judgment and punishment, which you would think if that’s what the framers intended, it would say,” Ray said on “CUOMO.”
Ray was also one of the special counsel prosecutors who investigated Bill Clinton’s alleged lies under oath about his sexual contact with Monica Lewinsky. Clinton avoided an indictment in a deal struck with Ray, the Washington Post reported in 2001.
Looking back on it, Ray say he never thought of Clinton being immune from prosecution.
“I don’t think I ever really thought about it because I think everybody agreed that Bill Clinton’s conduct, while reprehensible, didn’t constitute official action in the way that we think about it now when we’re talking about President Trump,” Ray said.
The federal appeals court that heard Trump’s case Tuesday seemed skeptical of the argument. The panel of judges appeared poised to reject it, saying Congress may not always choose to impeach a president for unlawful conduct.
In response to his position that Trump enjoyed near-blanket immunity, the judges peppered John Sauer, Trump’s attorney, with several hypotheticals about what a president could do without facing prosecution.
Judge Karen Henderson, an appointee of President George W. Bush, said Trump’s argument gives executives too much leeway.
“I think it is paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” she said.
The other two judges were appointed by President Joe Biden.
Ray said when the court makes a ruling, it will be important to look at how Henderson votes, as it could forecast a future line of thinking among Supreme Court justices, if they take up an appeal.
“I imagine the Supreme Court is going to have to grant (an appeal), because again, we’re in uncharted territory,” Ray said.
Mariotti isn’t so sure.
“They’re just going to let the D.C. Circuit Court of Appeals decision stand, which will ultimately be against Donald Trump,” he said.
NewsNation correspondent Joe Khalil and digital producer Urja Sinha contributed to this report.