As I discussed on Morning Joe this morning, I was surprised when President Trump’s counsel Rudolf Giuliani declared in an interview that Trump could have shot James Comey in the Oval Office and not faced indictment under the Constitution. For those of us who have long argued against sweeping immunity arguments in favor of presidents, this is the hypothetical that we often raise to prove our point. It is bizarre to hear someone use it as an argument in favor of such immunity claims. I have previously written that I believe a sitting president can be indicted. Article II is not where the homicidal meets the constitutional.
Giuliani told HuffPost that “In no case can he be subpoenaed or indicted. I don’t know how you can indict while he’s in office. No matter what it is.” He added “If he shot James Comey, he’d be impeached the next day. Impeach him, and then you can do whatever you want to do to him.”
I have long disagreed with this argument and I will not repeat my prior points. However, what is most notable is that Giuliani will rush to the worst possible hypothetical to make this point. This is precisely why the claim of a sweeping, unstated immunity is so implausible and unworkable under Article II. It is like a restaurant owner boasting to a health department inspector that under the regulations he could poison his patrons. It is hardly an ideal choice for persuasion.
As I discuss today in two columns, I believe Giuliani was right about the self-pardon issue while I believe he is mistaken about subpoenas. Ironically, until he made this poor choice of hypotheticals, I thought he had improved his performance from his dreadful start a couple weeks ago on television.
To put it simply, in the long discussions of what to do with James Comey in 2016, a woodchipper was not one of those options. In fairness to Giuliani, his point was not that Trump could not be indicted, but that he would have to be first impeached. There are good faith arguments on both sides of this issue, even though I have long found the arguments for immunity to be unsupported in the text and history of the Constitution.