Trump’s Argument for Immunity in 2024 Is the Opposite of His Stance in 2021

When former President Donald J. Trump appeared before an appeals court in Washington this week to claim he was immune from prosecution for his efforts to overturn the 2020 election, one of his lawyers argued that he should not face criminal charges because the Senate had failed to convict him of similar offenses at an impeachment trial three years ago.

But at that February 2021 trial, Mr. Trump, through a different set of lawyers, made the opposite claim: He argued that the Senate could not convict him because he was already out of office, while pointing to the criminal justice system as the legitimate remaining way to seek accountability.

“After he is out of office,” Bruce Castor, one of the impeachment lawyers, said, “you go and arrest him.”

This seeming contradiction was among the complexities about Mr. Trump’s immunity claims that caught the eye of the judges on the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday. A three-judge panel hearing his challenge to the election subversion case charges seemed skeptical of the argument.

The judges explored the apparent disconnect with D. John Sauer, a lawyer who handled the appeal for Mr. Trump. They pressed him to explain why the former president appeared to have reversed himself so drastically.

“You took the position — or your client did — during the impeachment proceedings that there would be an option for criminal prosecution later, and it’s in the Congressional Record,” said Judge Florence Y. Pan.

Mr. Sauer pushed back on the idea that Mr. Trump had admitted during the impeachment trial that he could be criminally prosecuted even if the Senate acquitted him. Mr. Sauer also insisted that the legal issues raised during the impeachment proceedings in 2021 had nothing to do with those brought up during the criminal prosecution in 2024.

“Whatever concession may or may not have been made there,” Mr. Sauer said of the impeachment defense, would not be binding in the current situation. “These are very different proceedings,” he added.

A doctrine in the law known as judicial estoppel forbids parties from taking positions that contradict statements they made in earlier legal proceedings. And at least two of the judges on the three-judge panel appeared troubled by the prospect that the seeming discrepancy in Mr. Trump’s arguments amounted to something like a shell game.

Judge Karen L. Henderson was the first judge to broach the issue. She asked Mr. Sauer to address what she said was a concession by the former president’s impeachment lawyers that Mr. Trump would “be subject to criminal liability” over the events of Jan. 6, 2021.

Mr. Sauer replied that the impeachment team had simply meant that Mr. Trump could be subjected to a criminal investigation, insisting that if he were actually charged, he could still raise an immunity defense.

At that point, Judge Pan jumped in, noting that Mr. Trump’s impeachment lawyers had said he could be criminally prosecuted — not just investigated.

Indeed, one of those lawyers, David I. Schoen, had argued that the criminal justice system could hold public officials accountable even if they sought to avoid the consequences of impeachment through an extreme gesture: resigning one minute before the Senate rendered a guilty verdict.

Mr. Schoen also claimed that “a person convicted of public crimes committed while he or she was in office may still be punished even though they no longer hold that office.”

In a brief interview on Wednesday, Mr. Schoen said that he had not been referring to Mr. Trump in his statement about former officeholders being punished for “public crimes,” but rather to more ordinary public officials.

“This was not a reference to the consequences for a president or former president,” he said, “just a general jurisprudence reference.”

But Mr. Schoen did not tell the Senate in February 2021 that there was any exception for presidents when it came to punishing former officials for their “public crimes.” And his remarks about “public crimes” came in the context of a broader discussion about presidential behavior.

In a separate interview, Mr. Castor said he believed former presidents could be prosecuted for crimes committed while in office whether or not they had been convicted at an impeachment trial over them. But he also said he believed presidents should be immune from prosecution over what they consider to be the execution of their official duties — even if they are wrong — so their decision-making will not be chilled, and that Mr. Trump’s election-related actions qualified for that exception.

In court this week, Judge Pan noted the effect that Mr. Trump’s impeachment arguments appeared to have had, saying that he may have swayed votes to his favor in the Senate by having his lawyers claim that impeachment was not needed to hold him accountable for Jan. 6 because the prospect of criminal prosecution was the “backstop.”

“It seems that many senators relied on that in voting to acquit,” Judge Pan said.

The Senate voted 57 to 43 to convict Mr. Trump, 10 votes short of the 67-vote supermajority needed to find him guilty. All but seven Senate Republicans voted to acquit him.

But Mr. Sauer rebuffed Judge Pan’s assertion that many of the senators who opted for acquittal did so based on any concession during the impeachment trial that Mr. Trump could still face criminal charges. Mr. Sauer said the judge’s statement had relied on “speculation,” noting that the court “lacks the ability to intuit” what motivated the senators’ votes.

In fact, a number of the senators in question publicly explained their motivation in exactly those terms.

For example, the Republican leader, Senator Mitch McConnell of Kentucky, delivered a speech on why he had chosen to acquit Mr. Trump despite blaming him for the Jan. 6 attack on the Capitol. The impeachment process was improper because Mr. Trump was no longer in office, Mr. McConnell said, while asserting that he could still “be tried and punished in the ordinary tribunals of justice.”

“We have a criminal justice system in this country,” Mr. McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”

Another leading Republican senator, John Cornyn of Texas, zeroed in on that same issue during the impeachment trial itself.

House prosecutors had expressed concern about a so-called January exception under which presidents whose terms were nearly over — so there was not enough time for an impeachment trial while they remained in office — would feel free to commit official crimes with impunity. Mr. Cornyn asked Mr. Trump’s lawyers whether a former president could still be subject to criminal prosecution for acts committed while in office.

Mr. Castor answered that the Constitution “makes very clear that a former president is subject to criminal sanction after his presidency for any illegal acts that he commits.” And Mr. Cornyn later issued a statement explaining his motive in voting to acquit Mr. Trump in precisely those terms.

“Given that the Constitution makes legal offenses committed while in office subject to investigation and prosecution, as warranted, after a president is no longer in office,” Mr. Cornyn said, “I believe that is the constitutional method of accountability — not impeachment.”

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