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Trump's week in federal court

: [POST-BROADCAST CORRECTION: In this discussion, a guest incorrectly states that Richard Nixon was impeached. While the House Judiciary Committee approved articles of impeachment against Nixon, he resigned before the House acted on those articles.]


UNIDENTIFIED GROUP: (Chanting) We love Trump.

DONALD TRUMP: This is a persecution.

UNIDENTIFIED PERSON #1: He actually just stormed out of the courtroom.

UNIDENTIFIED PERSON #2: Innocent until proven guilty in a court of law.


It's time for Trump's Trials, our weekly take on all the legal challenges former President Donald Trump is facing. Immune or not immune - that was the question. Judges on the D.C. Circuit Court of Appeals considered this week. Trump's lawyer, John Sauer, argued that presidential immunity shields Trump from any criminal prosecution for alleged crimes committed in office, and specifically those related to the federal election interference case in which Trump is criminally charged. According to their argument, the only way a prosecution would be legal is if Trump had been convicted in an impeachment trial, which he wasn't. Here's an exchange between Judge Florence Pan and Trump attorney John Sauer.


LIMBONG: Could a president who ordered Seal Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?

JOHN SAUER: If he were impeached and convicted first? Hands down.

FLORENCE PAN: So your answer is no?

SAUER: My answer is qualified yes.

LIMBONG: Host Scott Detrow dug into the immunity question with NPR senior political editor and correspondent Domenico Montanaro and Melissa Murray, an NYU law professor and the co-author of the upcoming book "The Trump Indictments." And Scott started by asking what her thoughts were on Trump's immunity argument.

MELISSA MURRAY: Well, I think the immunity argument was dumb, dumb, dumb. And I think it was made clear at oral argument how dumb it was. You know, there was this really unfortunate moment for Donald Trump's legal team where they were presented with earlier arguments made during the impeachment - the second impeachment hearing about whether or not Donald Trump should be impeached or whether he should stand trial. And, you know, they had his other lawyer talking about, like, you know, criminal prosecution is a way to hold this person accountable now that he's no longer president. And they had to sort of say, you know, we were making arguments that were convenient in the moment. They don't necessarily apply now.

But it's also just a dumb argument because we know that there are lots of public officials who could be impeached and aren't but are nonetheless held accountable through criminal prosecutions. There's also Richard Nixon. He was impeached. He was never convicted by the Senate. But nonetheless, Gerald Ford issued a pardon for him in order to insulate him from actual criminal liability going forward. That wouldn't have been necessary if the fact of his lack of conviction was dispositive.

SCOTT DETROW, BYLINE: And, Domenico, like, I think there's like - clearly, Melissa, you and every expert looking at this think this is pretty clear cut. But I just want to really underscore those arguments in the moment of impeachment. Many Republicans voted him guilty. Mitch McConnell voted not guilty but gave this big speech afterwards trying to have it both ways. And this was an argument that McConnell and many other Republican senators made at the time for why they voted not guilty.


MITCH MCCONNELL: President Trump is still liable for everything he did while he was in office. We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being accountable by either one.

DOMENICO MONTANARO, BYLINE: Well, I mean, that's like taking into account that, like, anybody in the Republican Party or Democratic Party cares what Mitch McConnell has to say, right?

DETROW: Well, in the moment they did, though. Like, in the moment, if Mitch McConnell had voted guilty, I think it's pretty good argument that enough other Republicans vote guilty behind him to convict him.

MONTANARO: Well, maybe. I just think that there's been this sort of war between...


MONTANARO: ...The sort of McConnell led, quote-unquote, "establishment" since at least 2010, with the rise of the Tea Party and the sort of Tea Party types who gave birth to the Trumpism that really has taken over the party. And I think that the fact that McConnell, who used to be such a strong Republican leader in the Senate, has really been sidelined by a lot of what we've seen with - whether it's the legal talk or political talk, that his influence has waned so much is really something that's been huge over the last few years. And where, you know, I don't necessarily think most of us thought that politically Trump would gain strength after January 6, but that's why he's showing up in courtrooms now instead of being on the campaign trail in a place like Iowa.

DETROW: Right.

MONTANARO: Because doing that, making that political argument is what helps him raise money and has only helped him with the Republican base.

DETROW: As I try to process everything that happened this week, I feel like, Melissa, you have said this several times throughout the conversation, that in both of the cases at the heart of things this week, there's a clear legal setback for Trump or clear indications of a clear cut legal setback to come. And yet he still benefits politically - right? - especially in the short term, especially as we go into the Iowa caucuses. He has managed to make himself in the eye of his supporters the victim, the person who's being, you know, trod upon by the unfair legal system or whatever he phrases that week over and over again, even as the legal proceedings move forward, and also winning on delaying things. It's just remarkable how that keeps happening.

MURRAY: It's more than remarkable. And I think it's more than just, you know, he's winning in the court of public opinion. For his supporters, he's made it so that law doesn't matter. And if law doesn't matter for that group of people, however large it is who want Donald Trump back in the White House, then for them at least, Donald Trump really and truly is above the law.

MONTANARO: Yeah. I mean, Donald Trump is winning in the court of opinion with Republicans, but overall, he's not. I mean, we still have a majority of independents and Democrats who will tell pollsters that they think he committed a crime. OK? Like, this is very different. And those are the voters who will determine an election. And all of that changed from before and after the January 6 hearings that we saw televised. And people were tuning into that. And I think that we are in this weird place where you have Republicans believing almost everything that Donald Trump says and then this whole other universe of people who are going to weigh in in the general election who don't.

DETROW: Melissa Murray, NYU law professor, co-author of the upcoming book, "The Trump Indictment." It's great to have you back with us this week.

MURRAY: Thank you.

DETROW: Also joined, as always, by NPR's Domenico Montanaro. Thanks, Domenico.

MONTANARO: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Domenico Montanaro is NPR's senior political editor/correspondent. Based in Washington, D.C., his work appears on air and online delivering analysis of the political climate in Washington and campaigns. He also helps edit political coverage.