Thread by @NormEisen

BREAKING: Trump has filed his immunity brief at SCOTUS & if it's possible, his position that he is above the law has become even more abhorrent

A thread

1/x supremecourt.gov/DocketPDF/23/2…

The lies literally began w the very first sentence in the brief that "no former or current president faced criminal charges for his official acts" bc "the president cannot function" if such charges can be brought

That's false: the reason no other POTUS faced criminal charges is because none engaged in conduct like that of Trump

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I'll go through some of the other highlights--if you can call them that--of the brief in this thread

& I have written at length about why Trump's audacious immunity claim fails, most recently for @MSNBC 👇

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msnbc.com/opinion/msnbc-…

Returning to the introduction:

It's notable for its complete failure to contend w the actual problem here, which is the balance b/w the admitted need to protect presidents from frivolous criminal investigation & prosecution

BUT also to assure when, like Trump, they allegedly break the law they are held accountable like any other American when they allegedly break the law

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It's just not good advocacy to evade that problem, which pains me bc one of the first names on the brief is John Lauro, w whom I used to practice criminal law in the same litigation boutique

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The 1st pg of the brief concedes its own argument

Trump admits that no pres has ever been charged & yet says denying absolute immunity would change that

But SCOTUS has never held that absolute immunity exists! We've gotten along fine w/o it bc no pres has acted like Trump

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Like the mythical dragon ouroboros, which eats its own tail, the brief consumes its own argument from the very first page

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In a sign of just how misconceived the whole brief is, Trump leans heavy & indeed primarily on Marbury v. Madison from the very top of his brief

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But as the D.C. Circuit points out, he gets Marbury backwards

It does not absolutely insulate presidents from judicial oversight--it empowers the courts to reject lunacy like Trump's proposed absolute immunity

Here's the D.C. Circuit point👇

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In a SCOTUS brief, every word counts

Trump squanders almost four precious pages on his stubborn misreading of Marbury

On p. 14 he finally gets to the point, arguing that the CIVIL immunity of Nixon v. Fitzgerald should be extended to the CRIMINAL context

But...

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He totally fails to deal with the Fitzgerald language expressly excepting criminal conduct from its holding & then rushes off to another even more foolhardy argument...

that the Impeachment Judgment clause confirms immunity

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I explain in this great essay w the great @tribelaw & my colleague Taylor Redd why--as a scholar & practitioner of impeachment--I think this argument is ludicrous 👉

12/x cnn.com/2024/01/10/opi…

If Trump twists Marbury, he totally breaks the Impeachment Judgment Clause, which doesn't say what he claims

It simply provides that IF a president is impeached & convicted, he may still be prosecuted--not that he may be prosecuted ONLY IF he's impeached & convicted

This is really borderline frivolous

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The next pages are a hodgepodge of args that we've already addressed & other wastes of space that serve to elide a key point:

Even if there were some immunity for official acts, Trump's effort to overturn the 2020 election was political & personal! Not official

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