More Trouble For Trump: Claimed He Was CANDIDATE In SCOTUS Brief!

Well this is a fun twist on the problem Trump faces with his “I’ve got Presidential Immunity” appeal. Even before the hearing in front the the appellate court earlier this week there had been discussion of his claim he was acting within the scope of his “Presidential duties” when he was committing the crimes for which he’s been indicted in DC. Lot’s a legal eagles have weighed in on technical stuff like could Trump’s actions be considered with the “outer perimeter” of his official duties? To be sure even if a court ruled that way there’s still the larger issue of whether Presidents can commit crimes and there’s nothing the law can do about it. That of course was the big takeaway from the appellate hearing. Still, I’m surprised to only be learning today that during his legal challenges to the election results that multiple times he claimed to be acting as a candidate! In fact, he claimed to be acting in his capacity as a candidate to SCOTUS itself! Oops.

Trump as we know has a long history of saying one thing in one place/setting and saying something quite different in another. Ok, so lots of politicians have done that but Trump’s taken the two-face stuff to a whole new level. Trump has gotten away (so it seems) with more of this than every other politician combined. But that’s politics. In a court of law it’s a whole different matter, and worse for Trump he’s said two different things on the same subject in formal legal filings. Again, OOPS. Politico has an article explaining Trump’s flip-flop. 

The article starts out recapping how in the wake of the 2020 election Trump was running around telling supporters AND claiming in legal challenges that those legal challenges were in his capacity as a candidate for the Presidency. The article doesn’t say it outright but I think the reason for framing it that way was until the results were certified they weren’t “official” and if you’ve followed Trump’s legal stuff you’ve learned more than you wanted to know about the importance of “standing” in being able to bring a lawsuit. As a candidate disputing some aspect of the unofficial results, Trump would have standing to file legal challenges. As President not so much. Therefore in that blizzard of lawsuits he was “candidate Trump.” With me so far?

In the past couple of weeks he’s been singing a different tune. In his DC case the focus is on January 6 and again, if you’ve been following things much of what’s going to get covered in court will involve the days leading up to that date. Who talked/met with who and how much Trump was personally involved. How much he personally gave the ok to. And even the active role he played in some of the events such as the call to Georgia Secretary of State Brad Raffensberger. (Or now we know to state officials in a key Michigan County) Or pressuring Pence not to count the electoral votes from certain states.

NOW, or in the past couple of weeks at least Trump’s rhetoric has transformed. He wasn’t acting as a candidate, but as President and “just doing his duty.” That by the time this stuff happened the election was “long over.” Trump says he was ensuring the election had been “fair.” This is one helluva reversal to say the least. From Politico:

But there’s a problem: It flies in the face of the legal arguments Trump made three years ago, during his frenetic push to subvert the election results. Even after the votes had been counted and certified, Trump filed lawsuits contesting the results — and he claimed he was doing so not as the outgoing president, but as a candidate.

It gets even better:

It’s even what he told the Supreme Court in a Dec. 9, 2020 brief filed by his lawyer at the time, John Eastman. “He seeks to intervene in this matter in his personal capacity as a candidate for reelection,” Eastman wrote.

I find it darkly amusing good ole John Eastman has popped back up on the radar.  I’ll bet he’s not happy to see his name back in the news. Before you know it Trump will be trashing him and he’s got his own legal problems starting with disbarment.  Anyway, this all poses a problem given the rather aggressive legal theory Trump is now pushing, that he was acting within the scope of his Presidential authority/duties. Legal experts say defendants can and do change legal strategies to gain an edge in court. However, it seems this level of change is quite a risk.

Worse, at least as I see it for Trump is that his flip-flopping had already caught the attention of judges involved in this case. While the bulk of discussion since the appellate hearing has been about Trump using Seal Team 6 to assassinate rivals and getting away with it, something else came up in the hearing that’s important:

But Trump’s shifting rhetoric may draw the eye of judges deciding his immunity case. In oral arguments before a federal appeals court Tuesday, the judges noted a contradiction between Trump’s current legal arguments — contending he cannot be prosecuted for his actions as president — and the ones he made during his Senate impeachment trial in 2021, when his attorney emphasized he could be prosecuted.

I’m not a lawyer, much less a judge but it seems to me like any judge who found themselves with a person repeatedly talking out both sides of their mouth, saying whatever they had to to get out of a jam and saying the opposite to someone else to get out of the same jam would doubt that person’s, that defendant’s/appellant’s credibility. It seemed both during the hearing and since the appellate judges were skeptical of Trump’s arguments. If it gets up to the SCOTUS level I’m pretty sure they will be be too. Just to be sure, Jack Smith will remind them in nice legal language that Trump will say anything in the heat of the moment to save his ass but the truth will be nowhere to be found in Trump’s pleadings.

The entire linked article is worth a read as it digs into this far more than I have done here. I will say the whole “I was a candidate/I was acting as President” thing reminds me of that classic scene from the movie Chinatown. The big reveal where Faye Dunaway’s character is, between being slapped by Jack Nicolson’s alternately saying “She’s my sister” (slap) “She’s my daughter” (slap) repeatedly. Maybe SNL could do a scene on this. Jack Nicholson (if he’s able to) could play Jack Smith, standing there with “Trump” in front of SCOTUS doing a variation: “I was a candidate” (slap) “I was being President” (slap) over and over. The person playing Roberts ends it all by slamming a gavel the size of mallet the comedian Gallagher used proclaiming “GUILTY! Off to jail with him!”