WASHINGTON ― Donald Trump made the extraordinary argument in federal court on Tuesday that he should be immune from criminal prosecution for any action taken while he was in the Oval Office, with his lawyers even conceding the possibility that a president could use the military to assassinate a political rival and still escape jail time.
Yet on Capitol Hill, just a few blocks away from the hearing at the U.S. Court of Appeals for the District of Columbia, many congressional Republicans couldn’t find it in themselves to reject the reasoning that presidents are above the law.
GOP senators hemmed and hawed, begged off questions by saying they were unfamiliar with the details of the case or simply deferred to the U.S. Supreme Court, which has yet to weigh in on the matter. It’s the latest example of Republicans giving Trump a pass as he steamrolls his way to the GOP presidential nomination.
“I choose not to get involved and comment about any of the people running for the nomination,” Senate Minority Leader Mitch McConnell (R-Ky.) said Tuesday when asked if he still believed Trump could be held liable in court for his actions leading up to the Jan. 6, 2021, attack on the U.S. Capitol while Congress met to certify the electoral vote.
McConnell had initially blamed Trump for the Jan. 6 insurrection, but he has since been loath to criticize him and has said he would support the former president if he becomes the Republican nominee.
“It depends on what they do,” added Sen. Lindsey Graham (R-S.C.) when asked if he agreed with the notion that presidents are immune from prosecution.
Sen. Kevin Cramer (R-N.D.) called it “a plausible argument,” while Sen. Chuck Grassley (R-Iowa) said, “You’re going to have to let the courts answer.”
Trump’s attorneys argued that his attempts to overturn the 2020 election, leading up to the Jan. 6 attack, were official acts and that he is therefore immune from prosecution. They also argued that presidents may only ever be convicted if impeached by the U.S. House and then tried in the Senate, something that has never happened.
The claims were met with skepticism by the three judges on the appeals court panel.
“Could a president who ordered SEAL Team 6 to assassinate a political rival [and is] not impeached, would he be subject to criminal prosecution?” a judge asked Trump attorney D. John Sauer.
The attorney responded, “Qualified yes ― if he is impeached and convicted first.”
If he loses the case, Trump is expected to appeal to the Supreme Court. That may delay the start of his first criminal trial, which deals with federal charges of conspiracy relating to the Jan. 6 insurrection. The trial, based on an investigation led by special counsel Jack Smith, is set to begin March 4 in the U.S. District Court for the District of Columbia.
Sen. Lisa Murkowski (R-Alaska), meanwhile, offered a rare GOP rebuke of Trump.
“I don’t think anyone should be immune from prosecution,” Murkowski told HuffPost, adding that Trump “is a person concerned about himself, and he’s using every tool at his disposal, including the courts, to take care of himself.”
Democrats expected the court to rule against Trump.
Sen. Richard Blumenthal (D-Conn.) said Trump’s claim to immunity would “in effect give every president a pass to violate the law, then resign and say she’s immune.”
