I'm old enough to remember the public sentiment on Richard Nixon when he was interviewed by David Frost in May 1977 and he claimed, "Well, when the president does it, that means that it is not illegal." Nixon had already left office, but polling done after the interviews showed that an amazing 75 percent of Americans thought that Nixon should just stay out of public life from that point on.
Cut to ten years later, and the Republican Party, dedicated to destroying Bill Clinton's presidency one way or the other, started hunting around for women from his past to tie him up in sleazy sexual harassment lawsuits. When Clinton had the temerity to argue that perhaps he should be spared the distraction of depositions and testimony while being president, the Republicans threw up their hands in horror. No one is above the law, not even the president. They took him to court and the Supreme Court UNANIMOUSLY agreed that the president did not have immunity from civil law suits.
Of course, that's because he was a Democratic president. Everyone know that it's okay if you're a Republican.
So now we're 20 years past the Republican Party pretending to care about the Rule of Law and making sure that the president understands that no one is above the law. And we've come back to the argument--this time forwarded by an actual attorney on behalf of Donald Trump--that if the president does it, it's not illegal.
And I mean, they've taken this to the most possible extreme. Fighting NYC's AG Cyril Vance's attempt to subpoena tax returns in the case of using hush money to silence Stormy Daniels, Trump's attorney William Consovoy used Trump's infamous claim that he could shoot someone on 5th Avenue in Manhattan and not lose any voters to argue that Trump cannot be indicted or charged while in office.
Trump is fighting the subpoena on the grounds that as president, he has absolute immunity from criminal indictment or investigation. His attorney said that would block Trump from being arrested and charged even if he followed through on his campaign trail claim: “I could stand in the middle of Fifth Avenue and shoot somebody and wouldn’t lose any voters, okay?”↓ Story continues below ↓
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Attorney William Consovoy argued that New York authorities would have to wait until the president was out of office to arrest and charge him for that crime. The DA's office argued the claim was a fabrication.
“Once a president is removed from office, any local authority” could prosecute him, Consovoy told a panel of three judges from the U.S. Second Circuit Court of Appeals. “This is not a permanent immunity.”
Judge Denny Chin pressed him on how the crime would be handled while Trump remained in office. “Nothing could be done, that’s your position?” he said.
“That is correct,” Consovoy replied.
That's a claim that has anyone with integrity and respect for the law reeling. Chuck Rosenberg, a former US Attorney, appeared on The Rachel Maddow Show and suggested that Consovoy painted himself into a corner that he knew was absurd, but was stuck doubling down on in service to his client. But he also knows it's a losing argument.
"We keep talking about these OLC--Office of Legal Council--memos out of the Justice Department. One issued under President Nixon, one issued under President Clinton. The one issued under President Clinton in 2000 actually contains a footnote. I'm going to nerd out on you. Footnote 36, Rachel, which specifically says you can investigate a sitting president. Not just by a federal grand jury, but also by Congress. And so the Department of Justice has conceded the point. Mr. Trump's lawyer has not."
Because there is absolutely no precedent for the president to claim executive privilege to hide tax returns, he is expected to lose in this appeal and is also expected to appeal it the Supreme Court.0