President Trump has famously boasted he could shoot a man in the middle of Fifth Avenue in New York City and not lose any political support. Now Trump’s lawyers are arguing that the president could get away with it legally, too — at least while he’s in office.
The Justice Department has long argued that the president is immune from criminal prosecution while serving in the White House. This claim has never been tested in court, although a federal judge recently blasted the assertion as “repugnant to the nation’s governmental structure and constitutional values.”
But a memo by the Office of Legal Counsel staking out this argument has been adopted as sacrosanct by the administration, such that Special Counsel Robert Mueller believed he was barred from bringing criminal charges against Trump in relation to the Russia investigation.
The question of presidential immunity is now at the center of a case now before a federal appeals court. The Manhattan district attorney has subpoenaed Trump’s personal and business tax returns as part of an investigation into potential financial crimes, linked to the payout of hush money to adult film actress Stormy Daniels, who claims she had an affair with Trump. Trump has fought the subpoena, but a district court judge ruled against Trump and his “extraordinary claim” of immunity earlier this month, insisting the president is not “above the law.”
On Wednesday, Trump’s attorneys returned to court and not only revived the claim of immunity, they pressed it to the extreme, arguing that the president’s protection from criminal prosecution in office is absolute — including if Trump murdered a man in cold blood on a city street.
The hypothetical murder imagery comes from Trump himself. While campaigning for the presidency he insisted: “They say I have the most loyal people. Did you ever see that? Where I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters, OK? It’s like incredible.”
In an exchange with Judge Denny Chin, Trump lawyer William Consovoy insisted that Trump could also face no legal repercussions for such a murder during his term.
Chin: What’s your view on the Fifth Avenue example? Local authorities couldn’t investigate? They couldn’t do anything about it?
Consovoy: Once the president is removed from office—. Any local authority—. This is not a permanent immunity.
Chin: Well, I’m talking about while in office.
Chin: Nothing could be done? That’s your position?
Consovoy: That is correct.
Listen to court audio of the shocking exchange, tweeted by NBC News, below:
Judge: If President Trump shot someone on Fifth Avenue, local authorities couldn't investigate, or do anything about it?
Trump lawyer: No.
Judge: Nothing could be done while in office? That is your position?
— NBC News (@NBCNews) October 23, 2019