Donald Trump's Immunity Claim Has 'Fatal Flaw': Former US Attorney

Former President Donald Trump's argument that presidents should be provided immunity has one fatal flaw, a legal analyst said.

Department of Justice (DOJ) Special Counsel Jack Smith last year charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights in connection to the investigation. The charges were over the riot at the U.S. Capitol on January 6, 2021, and the alleged plot to submit false slates of pro-Trump electors to the Electoral College. Trump maintains his innocence and has pleaded not guilty to all charges, accusing prosecutors of targeting him for political purposes.

In a post Thursday on Truth Social, the former president and Republican front-runner for the 2024 presidential nomination, again argued that presidents should have immunity, even when they "cross the line," because of the stature of their position. Trump has made similar arguments in the wake of Judge Tanya Chutkan, who is overseeing the federal trial, saying last month that Trump cannot cite immunity as a defense, which Trump's legal team recently appealed.

"His argument that presidents will always have to look over their shoulder has a fatal flaw, which is that he's the only president to ever face indictment," former U.S. Attorney Joyce Vance told MSNBC Way Too Early host Jonathan Lemire on Friday.

"So, when the court of appeals evaluates these arguments, they'll appreciate those real-world aspects to the decision that they're making, and the legal doctrine very simply is not that presidents are above the law."

Newsweek reached out to Vance via email for comment.

A federal appeals court heard his legal team's argument for immunity last week. Judge Florence Y. Pan seemed to imply dubiousness to the argument made by Trump attorney D. John Sauer—who was not employed by Trump during the January 6, 2021, Capitol riot—about whether the ex-president should be held responsible for his actions leading to the day's events.

"He was president at the time, and his position was that no former officeholder is immune," Pan said. "And in fact, the argument was there's no need to vote for impeachment because you have this backstop, which is criminal prosecution, and it seems that many senators relied on that in voting to acquit."

David Schoen, who was an attorney for Trump in 2021, argued then that the Constitution said "a convicted party following impeachment shall nevertheless be liable to indictment and punishment" while adding the impeachment trial was unconstitutional.

"Clearly, a former civil officer who is not impeached is subject to the same," Schoen said in 2021. "We have a judicial process in this country. We have an investigative process in this country to which no former officeholder is immune. That's the process that should be running its course."

Vance doesn't believe the appeals court "will have any difficulty rejecting Trump's arguments," adding that whether or not the U.S. Supreme Court takes up the case and rules differently, it should not be normal protocol and law that presidents have immunity from crimes or alleged crimes.

"That would let Joe Biden, for instance, do anything that he wanted to do to remain in office," she said.