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.