Trump's own lawyers dealt death blow to his immunity claim three years ago: George Conway

Former President Donald Trump's "presidential immunity" argument in the federal election conspiracy case is widely considered to have faceplanted in court this week, as his lawyer, former Missouri Solicitor General John Sauer, argued before a three-judge panel of the D.C. Circuit Court of Appeals that Trump could not be prosecuted for assassinating political opponents unless he was impeached first, and maybe not even then.

But there was another moment of the trial that also blew a huge hole in Trump's immunity argument that has been less discussed, according to attorney George Conway in a deep analysis for he wrote for The Atlantic

What's more, argued Conway, the damning evidence against Trump came from none other than his own lawyers.

Specifically, the argument focused on the text of Article I, Section 3 of the Constitution, which concerns the impeachment process for presidents, and the clause at the end: "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."

Most legal scholars interpret this to simply mean double jeopardy doesn't apply to impeachment, Conway noted, but Sauer argued it actually means the opposite: that presidents cannot be charged unless they are impeached first.

"This is fallacious reasoning by 'negative inference,' as Judge [Michelle] Childs dismissively put it, and it’s absurd for any number of reasons even apart from the plain meaning of the English language the clause uses," wrote Conway. "For one thing, a wealth of historical evidence contradicts the argument. As Justice Joseph Story explained in his Commentaries on the Constitution of the United States, even after an acquittal at an impeachment trial, the accused should still be liable to face a criminal trial, for 'if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes.'"

But the killing blow to Sauer's argument came next, wrote Conway: "as [Judges Karen] Henderson and [Florence] Pan later pointed out during the argument, Trump’s own lawyers conceded to the Senate in February 2021 that, even if Trump were not convicted on the impeachment charges, he could still be criminally charged. Oops."

In other words, Trump's previous legal team argued three years ago that impeachment wasn't necessary because he could be criminally charged anyway.

This was indeed one of the main arguments made by Senate Minority Leader Mitch McConnell (R-KY) for why he personally didn't find it necessary to impeach Trump.

Ultimately, wrote Conway, it's inevitable Trump will lose this case.

"The only question is how quickly it will happen," he concluded. "I have little doubt it will be soon."