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I’ll always remember the withering look on then-Judge Sonia Sotomayor’s face as she cut me off and asked a question that I knew was coming. This was a few years before Sotomayor ascended to the Supreme Court and became a Justice; she was sitting on the Second Circuit Court of Appeals at the time, and I was arguing to defend an extortion conviction we had earned against two Gambino Family mobsters. I was midway through the standard Second Circuit preamble: “May it please the court, Elie Honig for the gov–” when Sotomayor jumped in. “I have a bone to pick with you, “ she said. (Here we go, I thought). “Was that you who asked that question at trial?”
I already knew which question Sotomayor meant, and she knew that I knew. The trial judge had ruled that we could not introduce evidence that one of the defendants had a prior conviction. But my trial partner, during a heated cross-examination, had simply blurted it out, right in front of the jury. The judge admonished him, and told the jury to disregard it, but it was a bad move. As a capper, my trial partner conveniently scheduled a vacation in Europe for the date of our appellate argument. So guess who got to stand up and take credit for his work?
Here’s how I answered Sotomayor (yes, I had rehearsed this about 250 times): “Your Honor, that was my trial partner. But I take 100% responsibility for everything that both of us did throughout the trial.” She seemed satisfied enough, if still displeased. The Second Circuit ended up affirming the trial convictions, but they saved some unflattering words for my trial partner’s tactic.
I’ll always remember that “I have a bone to pick with you” glare from Sotomayor. And, if not for the Supreme Court recently going to telephonic argument, the lawyers who defended President Donald Trump’s position that he cannot even be investigated by a prosecutor while in office surely would have seen the same look from Sotomayor and likely other Justices too. “Temporary immunity,” Trump’s lawyers called it — “temporary” meaning “as long as he’s president.” Of all the dubious legal arguments made by Trump and his administration, this one takes the gold for its rare combination of audacity and stupidity.
The Justice Department has a longstanding policy against indicting a sitting president. This policy was not some Trump creation; it was originally drafted in 1973 and then updated in 2000. (Funny how presidential resignations and impeachments tend to focus the mind). We don’t actually know for sure whether the law permits such an indictment, but we do know the Justice Department won’t even try. Sure, the Justice Department could change its policy, but it has been in place for decades. And — realistically — what attorney general would have the guts to suspend the policy and place the president who appointed him or her in jeopardy?
This policy has already saved Trump’s hide once. Special counsel Robert Mueller stumbled over it in his report, and Attorney General William Barr finished the bailout by twisting the law and the facts to declare Trump, his political benefactor, all clear. But there is no question — or seemed to be, before the tax returns case — that a president at least can be investigated while in office and then charged once he leaves. Mueller said that explicitly in his report, and even Barr didn’t take issue at the time.
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Trump’s “temporary immunity” argument has not gone over well in the federal courts thus far. Federal district court Judge Victor Marrero — as mild-mannered and even-keeled a jurist as you’ll find — swatted Trump’s argument into the stands, calling it “repugnant to the nation’s governmental structure and constitutional values.” A Court of Appeals panel agreed, quoting the Supreme Court’s warning in the Richard Nixon tapes case that Trump’s argument, if accepted, would “gravely impair the basic function of the courts.”
Four other federal courts — two at the district court level and two more appellate courts — have rejected Trump’s argument in related cases that Congress has no legitimate legislative purpose to subpoena his tax returns from private banks. For those keeping score, Trump is 0 for 6 so far in his dogged efforts to prevent his tax returns from seeing the light of day. Even Steve Jeltz, the infamously terrible Philadelphia Phillies shortstop from my youth, batted .210 for his career. (Baseball — remember that?)
Let’s play out just why Trump’s legal position is so absurd. Using Trump’s own hypothetical, let’s say he actually did shoot somebody on Fifth Avenue. By Trump’s argument, nobody could even respond to the crime scene, so long as he remained in office. Sorry NYPD, sorry FBI: no ballistics, no witness interviews, no fingerprint or DNA collection, no search for surveillance video. Sure, a president could be impeached and then investigated, but during the weeks or months it would take to remove him — can’t investigate. Just hang out while impeachment plays out in the House and Senate, and then do your thing. In the meantime, hope that no unwitting pedestrian inadvertently walks through the crime scene and compromises it.
It goes even farther. Let’s say Trump worked with two other people to commit the hypothetical Fifth Avenue shooting (again: Trump himself gave us this fictitious scenario). Well, accomplices, it’s your lucky day because the cops can’t even gather evidence relating to you if the president was also involved. Think that’s a crazy scenario? Well, that’s what is happening in the actual dispute now before the Supreme Court. The Manhattan DA is investigating hush money payments — possibly Trump, yes, and also others. Under Trump’s argument, a prosecutor cannot even obtain Trump’s financial records to use only against his potential co-conspirators. Commit a potential crime along with the president, get a free pass at least as long as he’s in office.
At some point or another, every lawyer has to make arguments he or she doesn’t love. That’s especially true if you work for a president, where the stakes are high and the politics often inflexible. But there’s a difference between a shaky legal argument and a downright dangerous one. Trump’s argument to the Supreme Court this week crossed this line. If accepted, it would place the president not only above the law but even above inquiry itself.
While the Supreme Court did the right and necessary thing when it recently resumed hearing oral arguments telephonically, one of the downsides is the loss of non-verbal communication. Judges can communicate (and lawyers can learn) a lot from a raised eyebrow, a wave of a hand, a tilt of the head. The absence of such non-verbal cues was particularly pointed during the arguments this week. We couldn’t see Justice Sotomayor or her colleagues while Trump’s attorneys argued his ludicrous position this week. But I’m confident that, wherever she was, Justice Sotomayor had the same “I have a bone to pick with you” look that she once gave me, years ago.
Stay informed and stay safe,
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