Is Trump's immunity case DOA (and does that matter)?

More than a decade before he ran — and won — his first presidential election, then-property magnate and reality TV host Donald Trump infamously bragged to Access Hollywood host Billy Bush that he essentially had carte blanche for sexual assault because "when you’re a star, they let you do it. You can do anything." The unguarded admission, caught on tape and released to the public just weeks ahead of the 2016 election, nearly derailed Trump's presidential aspirations and has gone on to become one of the most infamous moments in American political history. It is also, in retrospect, an instructive moment for understanding how Trump understands and wields power in general.

On Tuesday, attorneys for Trump argued to a three-person panel of appeals court judges that their client should be granted broad and near-absolute presidential immunity from federal criminal charges that he worked to subvert and overturn his 2020 electoral loss. Allowing for a narrow exception in a case where a president has been first impeached and convicted by Congress, Trump's legal argument for criminal immunity can reasonably be distilled down to "when you're a president, they let you do it."  Like Judge Tanya Chutkan, who initially rejected Trump's immunity argument, the appeals court on Tuesday seemed decidedly unimpressed, asking at one point whether it meant a president "could sell pardons, could sell military secrets, could tell SEAL Team Six to assassinate a political rival" and retain immunity? 

While Trump is virtually certain to appeal any adverse ruling, does Tuesday's skepticism suggest his broad immunity argument is legally DOA? And ultimately, will that even matter? 

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What the commentators said

The claim that a president would likely enjoy immunity even for assassinating a political rival was "gobsmacking," according to longtime conservative commentator and Bulwark Editor-in-Chief Charlie Sykes. The argument that first a president would have to go through the political process of impeachment and conviction is "nonsense piled upon constitutional absurdity," and "frivolous with hair on it."

Trump's immunity defense seemed to be "hitting a brick wall" agreed The Washington Post's Ruth Marcus. In spite of Trump's post-hearing claim that "we had a very good day today" in court, Marcus noted that the tone of question from D.C. Circuit Court of Appeals Judge Karen Henderson, a President George H.W. Bush appointee, "suggested the likelihood of a unanimous result" from the bench, with Henderson joining the panel's two Biden appointed judges. For as much as there was a "near-certainty" that Trump's immunity argument would fail when he initially raised it, "there was something clarifying about hearing his motion to dismiss [Special Counsel Jack Smith's charges] demolished" by the judges. 

While the panel "seemed inclined" to uphold the lower court's rejection of Trump's immunity claims, "precise reasoning they might use, and how quickly they might rule, remained unclear," according to Politico. At the same time, Trump's attorney made a point to fill much of his presentation "with political fodder directed at audiences outside the courtroom" calling President Joe Biden Trump's "greatest political threat" and insisting Trump was "leading in every poll." 

The former president seemed to be trying to "have it both ways," according to The New Republic's Tori Otten. While during his second impeachment trial, he and his allies claimed he should be acquitted "he would face criminal prosecution later," he's now arguing "he shouldn’t have to face prosecution, either."

What next? 

With the underlying case on hold while the courts suss out Trump's immunity claims, the timing of their rulings — and what happens next — could be "nearly as important as the ultimate result," The New York Times reported. While the case is set to go to trial in March, "protracted litigation could push it back — perhaps even beyond the November election." That, per the Post's Marcus, is "the real point of the immunity dispute" which Trump's lawyers hope will "run out the clock" before election day. 

But "there’s another way to understand Trump’s move" argued The New Republic's Greg Sargent. "it's about what comes next." If, somehow, Trump's immunity argument prevails in court, "he’d be largely unshackled in a second presidential term," free to pursue his self-proclaimed goal of being a dictator "for day one" knowing he has a "get-out-of-prosecution-free card in his pocket."