Donald Trump's lawyers made a potentially problematic error in a Supreme Court filing regarding presidential immunity, according to a former Pentagon special counsel.
"Holy backfire," Ryan Goodman, a CNN legal analyst, said while highlighting the issue on X, formerly Twitter.
Goodman suggested that Trump's legal team appear to have misinterpreted what Supreme Court Justice Brett Kavanaugh wrote in a 2009 article to back up their claims that Trump can still cite presidential immunity once he has left office, as the judge—who was nominated to the SCOTUS bench by Trump—was only talking about incumbent presidents.
The nation's highest court will hear oral arguments on the presidential immunity debate April 25 as part of Trump's aim to dismiss Special Counsel Jack Smith's 2020 election obstruction case into the former president, where the Republican has pleaded not guilty to four federal charges.
In their Writ of Certiorari asking the SCOTUS to overturn a lower court decision rejecting the absolute immunity defense, Trump's legal team cited a section from a Minnesota law review article from Kavanaugh stating "any President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President."
However, in the same article Kavanaugh goes on to state that he does not believe former presidents are immune from prosecution as "no one is above the law" in the country's system of government.
"The point is not to put the President above the law or to eliminate checks on the President, but simply to defer litigation and investigations until the President is out of office," Kavanaugh wrote.
While comparing Trump's Supreme Court filing to Kavanaugh's article, Goodman posted on X: "Holy backfire. On left: Trump brief to Supreme Court citing Kavanaugh's writing on POTUS immunity from criminal prosecution. On right: What Kavanaugh actually said, which is a FORMER President is NOT immune."
In an appearance on CNN, Goodman went on to discuss how Trump taking Kavanaugh's previous remarks out of context may end up backfiring on the former president.
"It's a good move to try to put the justices back at themselves. In one of the paragraphs they have both Kavanaugh and Antonin Scalia quoted together," Goodman said. "So generally speaking that can work, I imagine that Jack Smith might do the same thing if he thinks there's something in Kavanaugh's writings.
"The problem for Trump is that it's not really what Kavanaugh was saying. Kavanaugh was talking about why an incumbent president should not be distracted by ongoing criminal prosecutions or investigations. I don't think he wants to be associated with this absolute immunity argument which [Trump's lawyers] are making, so it actually might turn him off," Goodman added.
"Those folks who think that the incumbent president is immune, make the argument that he or she is immune until they leave office."
Trump's legal team has been contacted for comment via email.
Elsewhere, Trump's legal team quoted a 1998 article from Kavanaugh while he worked on an independent counsel investigation into then-President Bill Clinton.
"Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act," Kavanaugh wrote.
Trump's lawyers argued that this observation applies to former presidents as well, and it applies "most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him."
The federal trial into Trump's alleged criminal attempt to overturn the 2020 election results and the events that led up to the January 6 attack could be further delayed for several months pending the Supreme Court's ruling on the immunity argument.
A number of legal experts have suggested the Supreme Court will ultimately reject Trump's argument that he can still cite absolute immunity for conduct committed in the White House, despite no longer being in office.
Correction 3/19/2024 11:10 a.m. ET: This article was updated to clarify Brett Kavanaugh's position on presidential immunity.
Uncommon Knowledge
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
