Is This Legal Theory Trump’s Best Chance to Beat the Prosecutors?

“If the answer is ‘no,’ then it is equally improper to prosecute Mr. Trump under these indictments, given that Bruen and Dobbs mandate that all constitutional provisions be applied in accordance with their fixed meaning in 1787-1789.”

Aldinger says the Supreme Court’s recent Dobbs and Bruen decisions allow for Trump and his lawyers to argue that all actions a president takes while in office must be considered legal unless the chief executive is successfully impeached and removed.

“His acquittals only strengthen this case,” said Gavin Wax, the executive director of the NCLU, adding that the legal theory was “articulated in a vacuum.”

Wax posted the theory to X, formerly Twitter, including a link to the 17-page legal memorandum. Wax called it “the best legal strategy” for Trump and suggested it will “set precedent to prevent this nonsense from happening again in the future.”

In addition to the new federal charges recently introduced by special counsel Jack Smith, the former president was also charged by a Democratic prosecutor in Georgia with claims that he engaged in racketeering and other crimes when contesting the results of the 2020 election.

“All of the legal cases against Donald J. Trump should fail under the principle that a President cannot be held liable in any way for an action he took while in office unless he is first convicted of impeachment. In other words, all actions a President takes while in office must be presumed to be legal unless the President is convicted of impeachment,” wrote Aldinger.

He added: In its recent decisions on gun control and abortion (i.e., New York State Rifle & Pistol Association, Inc. v. Bruen and Dobbs v. Jackson Women’s Health Organization), the Supreme Court confirmed that the Constitution must be interpreted in its historical context, without consideration given to balancing tests or means-end analysis.

Specifically, in Bruen, the Supreme Court held that the meaning of constitutional provisions are “fixed” according to how these provisions were understood when they were ratified. Thus, Bruen and Dobbs provide an avenue to argue for presidential immunity for actions a President took during office that goes beyond existing case law. These decisions allow for arguments to be made that reach back to the initial understanding of executive power that existed when the Constitution was written and ratified, shaving away restrictions and exceptions to executive power that have since accumulated in case law.”

So there. Take that, crooked prosecutors!

Looks like Trump’s home free.

Of course, Trump continues to poll first for the Republican nomination, and more than half of Republicans in the key primary state of New Hampshire said they would vote for the former president even if he were convicted on some or all of the charges against him. Many also said they would support Trump’s presidential bid if he were in prison, God forbid.