'Hypocrisy is apparent': Expert highlights Trump defense flip-flop

Donald Trump's lawyers have filed a new legal brief claiming he should be immune from prosecution in the Jan. 6 case — but their argument contradicts his position in a previous case involving his social media followers., according to a legal expert.

The former president's legal team argued Trump's official responsibilities should cover actions he took on matters for which he had "no direct constitutional or statutory responsibility," and so should include his efforts to overturn his 2020 election loss.

But he advanced the opposite claim three years ago when he was sued for blocking some Twitter followers, wrote law professor Aaron Tang in a new column for Slate.

"Then, in 2020, Trump filed a brief in the Supreme Court arguing that he could be considered to be acting as a government official only if his action was 'pursuant to [a] power which he is authorized to exercise by law' — which is to say, a power authorized by the Constitution or a statute," wrote Tang, a law professor at the University of California, Davis.

Trump argued in that case that he was acting as a private citizen, not a government official, by communicating with the public about his official actions as president, but in the Jan. 6 case he claims that his public statements, including tweets, were official actions that should automatically trigger official immunity.

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"The hypocrisy is apparent," Tang wrote. "When Trump was president, he wanted to evade liability for constitutional violations. So he argued that he was acting as a private citizen unconstrained by the Constitution. But now that he is a criminal defendant, he has reversed course because private citizens are not entitled to official immunity: Even his most private-seeming acts, he now claims, are 'official' and thus immune from prosecution."

The U.S. Supreme Court will hear oral arguments Tuesday in a pair of cases involving First Amendment lawsuits against government officials who blocked social media followers, and those officials have asked the court to adopt the defense Trump advocated in 2020 in his own case on that topic.

"The upshot is that the pending cases before the Supreme Court are about much more than the First Amendment’s applicability in an age of social media," Tang wrote. "They are cases that could also spell trouble for Trump’s defense team. For if the court agrees with the argument he once propounded — that the president’s official responsibilities should be construed narrowly — it will be difficult to see why the same rule shouldn’t apply to Trump’s claim to official immunity."

"The law, in short, is closing in on the former president," Tang concluded. "And in the case of his effort to claim immunity from prosecution, he has largely himself — and his prior inconsistent legal positions — to blame."