President Donald Trump famously bragged that “I could stand in the middle of Fifth Avenue and shoot somebody and wouldn’t lose any voters, okay?” Now, the judges on the United States Court of Appeals for the Second Circuit have pressed his counsel if that is true from a legal perspective. Trump counsel William Consovoy astonished the court by answering in the affirmative. Trump could commit murder and could not be even charged until after he left office. It is an extreme and in my view unsupportable claim based on a misreading of the Constitution.
This argument was made in an appeal ruling against Trump by the district court in a case where Manhattan District Attorney Cy Vance is seeking eight years of Trump’s tax returns. Trump sued and District Judge Victor Marrero threw out his suit and called these arguments “extraordinary.”
I have previously written as an academic that there is no basis for this argument. As discussed in prior commentary (and testified during the Clinton impeachment), it is not true that a sitting president cannot be charged with criminal acts. Ironically, the most recent (and dubious) authority for this claim could be Special Counsel Robert Mueller who declined to reach a conclusion on obstruction of justice based on this flawed understanding.
This unfounded claim was previously rejected by the trial court. It is unlikely to have any more success on appeal. What it will do is create more bad law from a bad case for the White House.
31 thoughts on “Trump Counsel Argues That Trump Could Commit Murder In Public But Not Be Charged Or Prosecuted During His Presidency”
The Trumpers believe Donald “PP” can kill someone in broad daylight and can’t be charged. How about killing two people? How about killing ten people? How about ten people of a list of fifty he plans to kill later? How about him killing twenty with a list of one hundred more he intends on killing next week. Is the Tumpers argument starting to sound stupid?
Dominic Fichera – if he took out the staff of CNN or MSNBC or any of the Lame Stream Media, then yes, we would back that argument.
Marky Mark Mark – after the raid on Area 51 we have the info we need for all four. Experts are going through it as I write this. I can say one thing publically, they all kept good records.
Pro Tip: at the Tin-Foil Hat Convention, Fred G, is the only one with reliable new information. Everybody else is either guesstimating or bsing. You should know that, I have seen you there on two occasions.
An Autocrat’s wet dream- no surprise there.
Just another example of trump hiring only the best people. Example number 1, Rudy G. Also, his lawyers live in the non-reality world as does his supporters.
you know turley never tires of flogging Giuliani. I’m not sure his results are as bad as they’re depicted. when you consider what the Democrats have tried to achieve against Trump, versus what they actually have, maybe Giuliani is being under rated.
Ah, yet another of the gullible rubes, dupes, klan wannabees, pocket-traitors and grifters on the make who are studiously ignoring that ever-amplifying ticking sound. So sorry for your loss.
this is to “I just keep my pointer fingers plugged into my earholes” kurtzie
Marky Mark Mark – we aren’t the darkies that the Democrats keep wanting to keep on the plantation. BTW, you could be having a problem with your pacemaker.
How many years or decades ago was that jab at NYC made by our President. The left is reduced to repetition they have to use stuff that has both humor and truth.
I don’t know of a Constitutional constraint against detaining a sitting President, as opposed to arresting him. And you can detain someone in serious matters like this for 96 hours. 4 days is enough time for Congress to remove the President when the evidence involves hundreds of people witnessing the President shooting someone on 5th avenue. The former President can then be arrested before the detaining period ends.
Just to be a little more pedantic about it for those would claim the same Constitutional provisions apply to detaining someone as opposed to arrest, I don’t believe detaining someone has to result in being taken to a particular area. The White House would suffice, and the President could be driven straight back there and told to stay there for the 96 hour period.
Ironic Timing Of Argument
One must note the irony that this “Trump could shoot someone on Fifth Avenue” argument was made on the same day disgruntled GOP congressmen tried to storm the Impeachment Inquiry Hearing Room.
The message seems to be that Trump can do whatever the hell he pleases regardless of public sentiment. It suggests to me that Trump is going to be serious trouble until he is either dead or totally enfeebled.
Actually, Mueller’s minders reached that ‘conclusion’ to avoid admitting explicitly they had no case. You’re always covering for awful people with law licenses.
Please give it a rest, Professor Turley. You must be exhausted.
Why not focus instead on the legal implications of:
John Solomon’s articles that also appear in “The Hill” about the Bidens or HRC
Judicial Watch’s FOIA request results about HRC’s private server
Yeah, the Bidens and HRC have also claimed exemption from prosecution and none of them are even in the government!
I believe President Trumps comment about shooting in New York not effecting his voters relates to the fact that there are few Republicans in New York City.
And people who live outside of New York City have no way of knowing what goes on there.
YYY, anyone outside New York City can simply go online and read any number of newspapers and magazines carrying Metro Area news. It’s not like NYC is a secret bubble sealed off from the larger country!
This is why executive authority should never have been lodged in just one person. The founders well knew that unrestrained vanity and ambition, which were the vices of kings, were menaces to liberty, and yet they countenanced this concession to exponents of monarchy among them at the Constitutional Convention (the president is basically a renamed king, albeit technically fenced-in).
Predictably, notwithstanding the supposed oversight of Congress and the courts, which historically, with few exceptions, have more or less abandoned the field, this arrangement would lead to the assertion of absolute power (not to mention the worship of it, eventually, by a critical mass of onlookers).
There is something about the exercise of authority by one person alone which is inherently likely, if not certain, to result in this scrofulous outcome, if only because its efficiency, e.g., in starting wars, in seizing steel mills, suspending habeas corpus, killing people with drones, directing the dubiously authorized commitment of public money, etc., confers an advantage over the necessarily augmented deliberation which must take place among more democratically constituted political bodies.
Apropos, there were other ideas in circulation at the Constitutional Convention (which were mysteriously rejected) about how the executive branch should be constituted which would have added more people to the mix of decision-makers (a committee, in essence), and in turn would have set limits on the personal ambitions and outlook of the holders of executive office. The presidency, in the final analysis, is not among the founders’ finer bequests to posterity. Trump has made this clearest, although it has been clear since 2001, by ignoring every limit which does not suit him.
The legal question of Trump’s immunity from prosecution while he is president, no matter what he may do, is not going to be decided on purely legal or constitutional grounds. Or, another way of putting it, in the case of the giant, abstract question of what is valid “executive authority”, the legal question cannot be meaningfully separated from the political one, and so cannot be left to intellectuals and the media for appraisal (Law Professsor 1 vs. Law Professor 2). Trump understands this; everyone else (mainly liberals), is only starting to.
Right you are, Mortmanberg. I would have the Attorney General elected by popular vote, and get the president out or the prosecution business.
He already has Paul and it is called a war crime. Yes, I am concerned that our “leaders” kill civilians and our military through extra legal proceedings. They should be held to account, period. Even many right wing people such as Ron Paul and John Whitehead feel it is past time that the public quit worshiping their “leaders” and held them to account just as every other person should be held to account in a nation of laws, not men. It is the refusal of people to hold their “leaders” accountable who are creating the space for more and more criminal activity by government/private powerful oligarchs.
So now back to JT’s argument. Trump’s lawyer just argued that Trump’s criminal actions are above the law. If you are good with that, you are good with having a dictator, not a president. You are certainly not honoring our Constitution and our system of government which says no one is above the law. If you believe in OUR system and not say, Saudi Arabia’s, then you need to support OUR Constitution.
Citizens are going along with “leader” worship which includes them abrogating our rights. this is based on “liking” a party or particular politician, not on principle. Instead we had better defend our govt., not the govt. of Saudi Arabia. We need to do it right now. And that means Clinton or Trump, I don’t care which of these lawbreakers is breaking the law, they are to be held to account by the people.
On September 9 the Justice Department filed papers claiming that President cannot be investigated. They were laying the groundwork for absolute power of the President. This has been done before.
Rights on Trial by Arthur Kinoy. Chapter 1. Wiretapping and Watergate includes a description of “United States against the United States District Court for the Eastern District of Michigan”. This chapter lays out the strategy of William Rehnquist, Richard Kleindiest, Robert Mardian under AG John Mitchell to get the Supreme Court to bless inherent absolute power of the Executive.
The Justice Department had, for years, lied about warrantless wiretapping Then, in two cases, they blatantly admitted that, yes, there was warrantless wiretapping. Instead of dismissing these cases, the judges allowed the cases to proceed. Then, in Detroit, Judge Damon Keith denounced the warrantless wiretapping. The Justice Department responded by appealing this decision, which was upheld. They then appealed to the Supreme Court. If the Supreme Court reversed the decision, the Fourth Amendment was toast and the inherent power of the Executive would have been legal.
Opening statement for the defense was by Bill Gossett who laid out the legal arguments. Kinoy argued on the implications of the case. He spoke for the entire time, plus 5-10 minutes beyond the red light, without interruption. One of Kinoy’s arguments was, what if the Executive decided that the opposition party was a threat and decided to use warrantless wiretaps on that party? Two days before the unanimous decision supporting Judge Keith’s original decision and Kinoy, et.al arguments, five burglars were caught at the Watergate with all the wires and taps. Rehnqquist, one of the architects of the strategy that took the argument to the Supreme Court, recused himself from the case but issued a concurrence.
Questions: Did the WH tap the DNC expecting to win the absolute power to do so? Were the burglars sent in to remove the taps because they knew the decision was against them? And how did they know in advance that the decision was against them?
The current case is bolder in that it does away with the Bill of Rights, not just the 4th Amendment.
Rights on Trial Library of Congress Catalog Card Number 94-73677
Is anyone really concerned that Trump is going to shoot someone?
No — people are concerned that the unstable moron will (and has) abuse(d) his power, framed in the hypothetical that was previously barfed by President Barf.
No, trump just gets the Turks and Russians to do it.
There are people who are concerned that Donald Trump and some of his supporters believe that he is above the law.
jrd – I am a lot more concerned about the Yellowstone Supervolcano.
Sadly no one is concerned about you thus your need to be seen. Come out of your basement and make a real friend.
I am thinking about wiring up a Faraday cage in the basement “supply room” to help protect electronics from a possible EMP event. what do you think? YNOT huh?
Tony – two things 1) my dog needs me to check for trucks outside and 2) I do not have a basement
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