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Trump lawyers' head-scratching legal filings just keep coming

In a Supreme Court filing this week, Trump's lawyers really reached in, citing the past words of Justice Brett M. Kavanaugh. And it's hardly the only recent example of their puzzling and seemingly desperate arguments.

By Aaron Blake | 2024-03-21

Supreme Court Justice Brett M. Kavanaugh greets then-President Donald Trump during a White House swearing-in ceremony in October 2018. (Jabin Botsford/The Washington Post)

Former president Donald Trump's legal team, in a Supreme Court filing this week, decided it would be a good idea to cite the past words of Justice Brett M. Kavanaugh.

In doing so, though, they reinforced just how drastic what they seek is: absolute immunity for broadly defined presidential acts. Kavanaugh's actual words cast that as unthinkable.

The filing is merely the latest head-scratching move from Trump's lawyers. And it's not even the first time they have filed something to the nation's highest court that fits that description.

The current example involves the lawyers' citation of a 2009 Minnesota Law Review article from Kavanaugh -- almost a decade before his ascent to the Supreme Court.

To hear Trump's lawyers tell it, Kavanaugh's article reinforced the dangers of presidents being subject to criminal and civil actions.

"In short, 'a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President,' " the Trump team's brief says, quoting Kavanaugh. It then adds, in its own words: "The same conclusion holds if that criminal investigation is waiting in the wings until he leaves office."

Left unstated -- but soon noted by law professor Ryan Goodman -- was that Kavanaugh in the same article actually took a different position from the one Trump's lawyers advanced.

While Kavanaugh posited that presidents shouldn't have to face criminal investigations or prosecution while in office, he took no such position on post-presidential indictments. Indeed, he seemed to take the constitutionality of post-presidential indictments for granted.

"The point is not to put the President above the law or to eliminate checks on the President," Kavanaugh said in the very next paragraph, "but simply to defer litigation and investigations until the President is out of office."

The title of that section of Kavanaugh's article is: "PROVIDE SITTING PRESIDENTS WITH A TEMPORARY DEFERRAL OF CIVIL SUITS AND OF CRIMINAL PROSECUTIONS AND INVESTIGATIONS" -- emphasis on "temporary."

Kavanaugh wasn't even arguing that a president was constitutionally immune from criminal investigation or prosecution while in office; he was merely saying that a president should be, and specifically that Congress should pass a law exempting the president from that.

The Trump team's using Kavanaugh to make this argument -- in a case that now sits before him -- is particularly notable. Not only is Kavanaugh one of Trump's nominees to the Supreme Court, but one of the potential stumbling blocks in Kavanaugh's confirmation was his expansive view of presidential power. With Trump facing plenty of scrutiny midway through his tenure, Democrats argued that Kavanaugh was too deferential to the chief executive. His previous thoughts on immunity were a major topic of debate and a strike against him with Democrats.

But even then Kavanaugh didn't go nearly as far as Trump now wants him and the rest of the Supreme Court to go. If it wasn't already clear that Trump's claim to full presidential immunity is extraordinary, spotlighting these words from Kavanaugh -- of all people -- would seem to drive it home.

Of course, few legal experts expect Trump's immunity claim, which was roundly rejected by an appeals court last month, to succeed. For Trump, the main value of the Supreme Court's taking up the case appears to be delay. But cuing this up for the nation's highest court at the very least risks another embarrassing defeat at the hands of Trump-nominated justices such as Kavanaugh.

The Kavanaugh citation follows other dubious inclusions in Trump's legal filings, both in the Supreme Court and in lower courts:

These examples don't even include the sloppy, error-riddled legal filings that characterized other Trump-aligned lawyers' hasty efforts to overturn the 2020 election.

Trump has pitched his many legal setbacks as a result of a biased and weaponized legal system. But when you have to reach for these kinds of arguments -- including citing your own Supreme Court nominee who clearly took a position at odds with your own -- it would seem to reinforce that you're not working with much.


This article was downloaded by calibre from https://www.washingtonpost.com/politics/2024/03/21/trump-lawyers-head-scratching-legal-filings-just-keep-coming/


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