The Memo: For Trump, legal threats become opportunity

Former President Trump is expected to be in a Washington courtroom Tuesday, just six days before the Iowa caucuses.

For any candidate other than Trump, the juxtaposition of legal woes with a big political test would spell political doom.

But Trump leads GOP primary polls by more than 50 points nationally and by more than 30 points in Iowa. He looks to be a 50-50 bet, at worst, to win the general election if he becomes the Republican nominee.

The fact that such a thing is possible for a twice-impeached former president facing four indictments and a total of 91 criminal charges is the cause of immense frustration for Democrats and other critics.

President Biden, speaking Monday at the Charleston, S.C., church where a white racist gunman killed nine Black parishioners in 2015, accused Trump and his allies of “trying to steal history.”

Trump avowedly hopes to at least erase any possibility of being held criminally culpable for the events surrounding the Capitol riot of Jan. 6, 2021.

On Tuesday, his legal team will make that case before three judges at the U.S. Court of Appeals for the District of Columbia Circuit.

The core of their argument will be that Trump’s actions and rhetoric around the 2020 election were part of his official duties as president and, therefore, cannot be prosecuted.

In a social media post Monday, Trump promised he would be at the hearing.

He added, “Of course I was entitled, as President of the United States and Commander in Chief to Immunity. I wasn’t campaigning, the Election was long over. I was looking for voter fraud, and finding it, which is my obligation to do, and otherwise running our Country.”

No evidence of widespread voter fraud has ever been produced, despite Trump’s protestations to the contrary. He has also reacted with fury when aides and officials — including his then-Attorney General Bill Barr in the waning days of his presidency — have pushed back against his hyperbolic or outright false assertions.

Still, Trump is going to get his day in court on the immunity question. Many observers think the issue may end up before the Supreme Court. 

Trump’s nemesis, special counsel Jack Smith, had sought late last year to get the Supreme Court to take on the issue in an accelerated fashion, bypassing the court of appeals. But the high court declined to do so.

There are plenty of skeptics of the Trump team’s legal view — many of whom argue that the former president’s interpretation would mean that any president is above the law.

Tanya Chutkan, the judge presiding over the Trump federal case, ruled last December that serving in the nation’s highest office “does not confer a lifelong ‘get-out-of-jail free’ pass.”

Richard Painter, a law professor and former Republican who left the party in 2018 because of Trump, told this column that he does not believe the Trump team’s legal argument “has any merit whatsoever.”

Painter contended that nothing in the Constitution nor in case law supports the idea that a president enjoys blanket immunity.

He also expressed deep skepticism that Trump would prevail even before a Supreme Court that has a 6-3 conservative majority. Three of the conservative justices are Trump nominees.

“A conservative Court is also interested in its own power and the power of the courts more broadly,” Painter argued. “The idea of putting the President of the United States beyond the reach of the judiciary would be anathema to the most conservative justices on this Court.”

Right now, Trump looks to be politically out of the reach of his rivals for the GOP nomination.

In that battle, political insiders suggest his pause from the campaign trail to attend court is unlikely to have any negative effects at all.

Republican voters have rallied around Trump during his indictments. His court appearance will undoubtedly be a spectacle — one that will again force his rivals into reacting to what he is doing rather than making the case for their own candidacies.

“That wouldn’t be happening in the same way if he was just doing rallies and posting on social media,” said Matt Mackowiak, the chair of the Travis County, Texas, GOP.

The courtroom episodes, Mackowiak added, “sort of force his competitors to defend him. It must be an out-of-body experience for people who are challenging him in the primary. These massive moments appear and they are forced, for a lot of reasons, to defend him.”

Both Florida Gov. Ron DeSantis and former United Nations Ambassador Nikki Haley have either suggested or said directly that they would pardon Trump if either of them become president and Trump is convicted.

Some Republicans are critical of the de facto supportive stance, both morally and in terms of a political tactic.

Doug Heye, a former communications director for the Republican National Committee, argued that, in general, if a political opponent is teetering, “you either push them over or keep your hands back because they are falling on their own.”

But referring to Trump’s primary rivals, he said, “In this case, we have seen them reinforce Trump’s message by using the same language — about a ‘weaponized justice system’ and so forth.”

Referring to Republican voters who are skeptical of Trump, Heye contended, “His own opponents didn’t even give them somewhere else to go.”

There is widespread agreement that one potential twist in the tale could be a real game changer. If Trump were actually convicted, supporters and detractors alike acknowledge it could give even some Republicans second thoughts.

The impact on independent voters could, of course, be far worse.

But right now, the odds of a Trump verdict while the GOP primary is still competitive seem slim.

In the end, Tuesday’s hearing is likely to be just one more episode of the Trump show.

The Memo is a reported column by Niall Stanage.