Trump’s plea for immunity in 2024 is the opposite of his position in 2021

When former President Donald J. Trump appeared before a Washington appeals court this week to argue that 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 failed to convict him of similar crimes during an impeachment trial three years ago.

But during that trial in February 2021Mr. Trump, through another group 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 avenue for accountability.

“After he’s out of office,” said Bruce Castor, one of the impeachment lawyers, “you’re going to arrest him.”

This apparent contradiction was one of the complexities surrounding Mr. Trump’s immunity claims that caught the attention of the judges of the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday. A three-judge panel that heard his challenge to the election subversion charge appeared skeptical of the argument.

The justices examined the apparent discrepancy 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 dramatically.

“You took the position during the impeachment proceedings — or your client did — that there would be a possibility of criminal charges later, and that is in the Congressional record,” Judge Florence Y. Pan said.

Mr. Sauer pushed back on the idea that Mr. Trump had conceded during the impeachment trial that he could face criminal charges even if the Senate acquitted him. Mr. Sauer also emphasized that the legal issues raised during the 2021 impeachment proceedings had nothing to do with the issues raised during the 2024 criminal prosecution.

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

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

Judge Karen L. Henderson was the first judge to raise the issue. She asked Mr. Sauer to address what she said was a concession by the former president’s impeachment lawyers that Mr. Trump “could be held criminally liable” for the events of January 6, 2021.

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

At that point, Judge Pan intervened, noting that Trump’s impeachment lawyers had said he could face criminal charges — not just investigation.

One of those lawyers, David I. Schoen, had even argued that the criminal justice system could hold officials accountable even as they tried to avoid the consequences of impeachment through an extreme gesture: resigning one minute before the Senate finds guilty. sentence had been pronounced.

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

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

“This was not a reference to consequences for a president or former president,” he said, “but a reference to general case law.”

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 comments 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, regardless of whether or not they had been convicted in an impeachment trial about them. But he also said he believed that presidents should be immune from prosecution for what they consider the performance of their official duties — even if they are wrong — so that their decision-making will not be chilled, and that the election-related actions of the Mr. Trump qualified for that exception.

This week, Judge Pan noted in court the effect Trump’s impeachment arguments appeared to have had, saying he may have swayed Senate votes in his favor by having his lawyers argue that impeachment was not necessary to to hold him responsible for Jan. 6 because the prospect of criminal prosecution was the ‘backstop’.

“It appears that many senators relied on that when they voted to acquit,” Judge Pan said.

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

But Mr. Sauer refuted Judge Pan’s assertion that many of the senators who chose to acquit did so based on some concession during the impeachment trial that Mr. Trump could still face criminal charges. Mr. Sauer said the judge’s statement was based on “speculation,” noting that the court is “unable to sense” what motivated the senators’ votes.

In fact, several of the senators involved have publicly laid out their motivations in precisely those terms.

The Republican leader, Senator Mitch McConnell of Kentucky, gave a speech about why he chose to acquit Mr. Trump despite blaming him for the Jan. 6 attack on the Capitol. The impeachment trial was improper because Mr. Trump was no longer in office, Mr. McConnell said, 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 lawsuits. And former presidents are not immune from being held accountable by either.”

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

House prosecutors had raised concerns about a so-called January exception under which presidents whose terms were almost over — leaving not enough time for an impeachment trial while they remained in office — would feel free to act with impunity to commit official crimes. Mr. Cornyn asked Mr. Trump’s lawyers whether a former president could still face criminal charges for actions committed while in office.

Mr. Castor responded that the Constitution “makes it very clear that after his presidency a former president is subject to criminal penalties for any illegal acts he commits.” And Mr. Cornyn later issued one rack in which he explained in precisely those terms his motive for voting to acquit Mr. Trump.

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