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Harvard Law Grad Defends President’s ‘Absolute Immunity’ Claim After Kavanaugh and Gorsuch Reject It

Prior to Thursday’s 7-2 Supreme Court decision in Trump v. Vance, President Donald Trump and his legal team had asserted that, while in office, a sitting president enjoys “absolute immunity” from the criminal process. The Court, including Trump-appointed Justices Brett Kavanaugh and Neil Gorsuch, unanimously rejected this particular point, writing that “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.” The Court also came up with a test for lower courts to apply to the congressional subpoenas. But just hours after the Court’s decisions, White House press secretary Kayleigh McEnany told reporters that the administration still believes Trump is absolutely immune, calling the decision a “big win” for the president.

Here’s what happened.

Pushing back on McEnany’s statement, Reuters’ White House correspondent Jeff Mason pointed to Trump’s tweetstorm earlier Thursday—wherein he made wild allegations about “prosecutorial misconduct” and political corruption. In other words, Trump’s tweets didn’t sound like the “win” that McEnany said had occurred.

The reporter asked if Trump’s “thinking” changed as he’s “had more time to digest” the decisions.

“No, the President was making a general point about deference on the principle of absolute immunity, which is the posture that the admin–that the President took in court.  You know, he believes there should have been more deference there,” McEnany said, referring to another Trump tweet.

McEnany said that it was, in fact, a “win” that the Supreme Court remanded both Trump v. Vance and Trump v. Mazars to the lower courts.

CNN’s Kaitlan Collins then asked whether Trump agreed with the court’s ruling that he is not absolutely immune from the criminal process.

“Well, where the President stands is he still maintains his initial position, and he agrees with Justice Thomas in the dissent, who said, ‘The demands on the President’s time and the importance of his tasks are extraordinary, and the Office of the President cannot be delegated to subordinates. A subpoena imposes both demands on the President’s limited time and a…burden,’” the press secretary said, adding, “So he agrees with the dissent.”

Another reporter then noted that it sounded like the president still believed he was “above the law,” again asking whether Trump believed he had “absolute immunity” from investigation.

“It’s a very — it’s almost as if folks don’t understand a legal term of art. ‘Absolute immunity’ is a legal term of art,” McEnany responded.

McEnany, a Harvard Law grad, then quoted Alexander Hamilton, claiming that the historic figure’s belief that a president “must be able to operate unencumbered” was justification for the assertion.

“That’s where the proposition of absolute immunity comes from, and that is what the administration was defending in court,” the press secretary explained.

[image via Win McNamee/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.