Former President Donald Trump has, let’s say, a shaky relationship with historical fidelity. He often attempts to completely rewrite history to suit whatever point he’s currently making regardless of how much it may contradict something he’s previously said. When confronted with this discrepancy, Trump will usually attempt to either claim he never said the first thing or otherwise dismiss the past in favor of the present.
There’s one exception to this rule: sworn depositions. For all his bluster otherwise, Trump is usually (but not always) more restrained when it comes to claims he’s made in court. As Politico recently reported, though, his attempt to have the federal charges against him for election interference thrown out on the basis of a cockamamie theory of “absolute presidential immunity” has led to even more blatant attempts to completely reverse himself. This desperate play shows that the case that special counsel Jack Smith has against Trump is forcing the former president up against the wall.
This desperate play shows that the case that special counsel Jack Smith has against Trump is forcing the former president up against the wall.
Let’s jump back to right after the 2020 presidential election, in the early days of Trump’s attempts to declare himself the winner despite clearly losing to Joe Biden. Between Election Day and when the electoral college voted in mid-December, the Trump campaign filed a boatload of legal cases in various states attempting to have the results overturned. While across-the-board unsuccessful and built on the scantest of evidence, suing in court was well within his right as a presidential candidate.
In most of those filings, his lawyers emphasized his role as a candidate to give him standing to bring suit. The harm that Trump alleged was being done was to him as a political office-seeker, not to him in his official capacity as president. In tweets sent while those cases were proceeding (and the fundraising money was rolling in), Trump stressed that the race was still wide open. When his lawyer John Eastman filed an attempt to intervene in a long-shot case before the Supreme Court that December, he wrote that his client did so “in his personal capacity as a candidate for reelection to the office of President of the United States.”
Even as the Supreme Court declined to hear that case, no evidence of fraud materialized, and it became clear that the legal pathway was closed, Trump continued to tell his supporters that there was still a way for him to win. Trump’s subsequent pressure campaign against officials, culminating in the Jan. 6, 2021, attack on the Capitol, would become the basis for the criminal charges against Trump not just in Smith’s federal case but the state-level election interference case he faces in Georgia.
Fast-forward to today and Trump is having belated second thoughts on whether the race was still being decided at that point. As Politico documented, he’s begun posting on his TruthSocial platform that during the time he was allegedly trying to conduct an “autogolpe,” he was just a law-abiding president. “The election was long over, I wasn’t campaigning, I was just doing my job,” he said in a recent video explaining why he deserves immunity.
As my colleague Jordan Rubin explained, Trump is attempting to not only have the court find that the total immunity that he claims really exists, but that it applies to former presidents for any actions taken while in office and that it covers the conduct that he’s been charged with in the federal indictment. Those last two points are important to understand his delayed change of heart. If his attempts to throw out the results of the election were undertaken as a candidate, then any presidential immunity, real or imagined, doesn’t apply. If his immunity claim can really be credibly applied, he’d have to have been doing so under the auspices of official presidential activity.
It doesn’t do him much good then to have already filed all those lawsuits in 2020 saying that he was acting as a candidate, not a president.
That’s why during last week’s hearing before the U.S. Court of Appeals for the D.C. circuit, his lawyer, John Sauer, leaned so heavily on the Supreme Court’s ruling in Nixon v. Fitzgerald. The court determined in the 1982 that the president held absolute immunity from civil prosecution for acts taken as president, even those that fit within the “outer perimeter” of his duties. Without that protection, presidents could be sued for all kinds of downstream effects of actions they take, like vetoing a proposed subsidy that causes a worker to lose his job. But there’s no similar standard for criminal immunity, no matter what Trump has claimed, leaving him scrambling to find some way of spinning his post-election schemes into legitimate presidential acts.
It doesn’t do him much good then to have already filed all those lawsuits in 2020 saying that he was acting as a candidate, not a president. Those suits were already cited in a district court’s ruling that Trump is open to civil lawsuits for his role in the Jan. 6 attack because he was acting as an office-seeker, not an officeholder. Even without that, the appeals court panel that heard his case seemed pretty skeptical of each of his arguments, especially the idea that he was somehow acting with his presidential duties in mind.
There’s little chance that the appeals court will rule in Trump’s favor. The same arguments will probably be regurgitated during the inevitable appeal to the Supreme Court. But that Trump is so busy trying to move the goalposts yet again proves that there’s reason for him to be worried that he’ll be facing Smith at trial before he can run out the clock in November.
