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- Trump's old impeachment defense came back to bite him in Jack Smith's election-interference case.
- Trump's lawyer argued he can't be prosecuted unless Congress had already impeached and convicted him over the act.
- But two judges noted that Trump's impeachment lawyers argued the exact opposite of that in 2021.
Donald Trump's lawyer argued in an appeals court hearing Tuesday that he should be immune from criminal prosecution for his actions while in office unless Congress had already impeached and convicted him first.
But his attorney ran into an immediate issue.
Trump's impeachment lawyers once made the exact opposite argument — a discrepancy two of the appellate judges picked up on.
Specifically, when Trump was impeached over the Capitol riot in 2021, his lawyers drilled down on one key point: a former president shouldn't face impeachment proceedings; he should face the courts.
It's a rationale that many Republicans — including Minority Leader Mitch McConnell — used when voting to acquit Trump.
"We have a criminal justice system in this country. We have civil litigation. And former presidents are not immune from being held accountable by either one," McConnell said on the Senate floor in 2021.
Now, Trump is facing those courts in the criminal election interference case brought by Special Counsel Jack Smith.
Trump's defense lawyer, D. John Sauer, argued before the Washington, DC, appeals court panel that a president cannot be criminally prosecuted for his actions in office if he wasn't impeached and convicted for them.
But two of the judges noted that Trump had relied on the opposite argument years ago.
"What about the two concessions made, in the first impeachment proceeding and then in Trump v. Vance, that impeachment should be stayed and wait until he's out of office when he would be subject to criminal liability?" asked Judge Karen Henderson, a Republican appointee.
Sauer replied that the impeachment defense — which Smith's team also cited in its legal briefs — simply says, "we have a judicial process in this country, period."
"It did not say that we could never raise an immunity defense" in response to criminal prosecution, he added.
Judge Florence Pan interjected, telling Sauer that Trump's defense lawyer in his 2021 impeachment proceedings said that "no former officeholder is immune from investigation and prosecution."
"Investigation is what there's no immunity to," Sauer said.
"And prosecution," Pan said.
Sauer reiterated his argument, but Pan cut him off.
Trump "was president at the time, and his position was that no former officeholder is immune, and in fact, the argument was there's no need to vote for impeachment because we have this backstop, which is criminal prosecution, and it seems that many senators relied on that when voting to acquit," Pan said.
The hearing will have massive implications for Trump, who's facing four criminal cases as he runs for the presidency again.
Trump has pleaded not guilty in all four cases and alleged that they are a "witch hunt."