STEVE INSKEEP, HOST:
Federal appeals court judges had questions about a claim by Donald Trump. His lawyers say he should be immune from prosecution for his acts as president, even his effort to overturn his election defeat. Trump is trying to avoid a trial. Kim Wehle is a former federal prosecutor, now a constitutional law scholar at the University of Baltimore and a regular guest here. And she was listening yesterday. Kim, welcome back.
KIM WEHLE: Good morning, Steve.
INSKEEP: What was the strongest argument that you heard yesterday in favor of presidential immunity, if any?
WEHLE: That's really tough, if any. I think the problem with Donald Trump's position is that there's no limiting principle. That is his argument is that any actions taken while president, even if criminal, are protected from any liability unless the - there's a political system - that is, the impeachment process - that convicts him first. It's a sort of a tortured argument that is not consistent, I think, with the spirit of the Constitution, which says, no more kings.
INSKEEP: Isn't there a history, though, of loose restrictions on the president of the United States? The president in many areas has been held in place more by norms than by laws, under the theory that a president might at some point need to do almost anything.
WEHLE: Well, unlike for members of Congress, there's no express provision of the Constitution that gives presidents immunity. But the Supreme Court has held, you know, presidents do have to have some leeway to make really hard decisions that critics might not like. And if they were worried all the time that they could be sued or criminally prosecuted, it would hamstring their ability to actually function as president. But, you know, sort of inciting an insurrection, the things that Donald Trump has been accused of and also pretty well established factually in various venues - I think it's really tough to say violating the law, as some of the judges mentioned - just Judge Henderson - the idea of executing the law in the way that is criminal - that's contradictory and inconsistent. So I think we have factually a pretty clear line here, but it's not one that Donald Trump's lawyers are willing to recognize.
INSKEEP: Judge Henderson, we should note - a Republican appointee on this panel basically saying you cannot claim you were enforcing the law by violating the law. There was another interesting exchange involving Judge Florence Pan, who is an appointee of a Democratic president who asked about this hypothetical. Suppose that the president of the United States sends a Navy SEAL team to kill a political opponent. Could you prosecute them for that? What did you make of the - of Trump's lawyer's response?
WEHLE: His argument - he sort of got cornered. He said that that would be something that, of course, there would be an impeachment process, and he would be impeached. We've seen impeachment not work. I think many of us who think about this a lot think you might as well get out our black Sharpie because it's so politically fraught. And he was cornered to say, yeah, that would be tolerable under the Constitution unless there was a political engine that stopped it initially. And of course, his argument also assumes that the president wouldn't somehow hamstring Congress or make it hard for the Senate to do its job or resign before there can be an impeachment. So it - I don't think it was a very successful response, but there's not a really good analogy (ph) that I could think of as an alternative.
INSKEEP: I even wondered - if you said you must be impeached and convicted first for assassinating a political rival, well, you could just have Congress killed, I suppose.
WEHLE: Exactly. I think - you know, I mean, these are scenarios that seem absurd, but that's where we are in absurd lands with some of these arguments.
INSKEEP: Do you see any possibility that the appeals court might give Trump some leeway here?
WEHLE: Well, one of the judges thought there needed to be more review of the factual record to sort of parse out which parts are OK, which parts might not, but I don't think they will affirm his position by any means now.
INSKEEP: And that is an interesting detail because, of course, the timing, all of all of this is considered crucial if Trump's trial is to begin on time. Kim, thanks so much.
WEHLE: Thank you, Steve.
INSKEEP: Kim Wehle at the University of Baltimore. Transcript provided by NPR, Copyright NPR.
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