Alan Dershowitz to Newsmax: D.C. Case Threatens to 'Eviscerate Immunity'

While former President Donald Trump might only have a stay as a potential victory after Tuesday's hearing on presidential immunity, constitutional law expert Alan Dershowitz told Newsmax that special counsel Jack Smith made a mistake from the jump.

"The government, Jack Smith, has started with an argument that's far, far too broad and that will probably lose," Dershowitz told Tuesday's "National Report" as arguments were ongoing in a Washington, D.C., federal appeals court with Trump in attendance.

"His opening statement basically suggested that the president's immunity does not extend beyond the time that he's in office. That is an absurd conclusion.

"That would mean that even if the president did something within his presidency, but then he's prosecuted after he leaves office, he can't invoke immunity.

"That would eviscerate immunity completely."

If the case ultimately rules against presidential immunity as broadly as Smith has argued, President Joe Biden could face prosecution for everything, including "malpractice and mal-administration" for his handling of the border, Dershowitz told co-hosts Shaun Kraisman and Emma Rechenberg.

"That argument will be rejected either by the court of appeals or by the Supreme Court," Dershowitz predicted.

Ultimately, a stay and getting the case to the Supreme Court could net Trump and his legal team a "partial victory" that would save America from completely destroying presidential authority under the vise of lawfare.

"But the core argument about immunity itself, I think he'll lose — I think Trump will lose in the Court of Appeals but may very well win at least a limited victory in the United States Supreme Court," Dershowitz added. "So this is a work in progress."

The Supreme Court probably does have to weigh in on this case for the sake of U.S. precedent, because "there are very substantial issues here," according to Dershowitz.

"I don't think this case will be decided purely on a 6-3, Republican versus Democrat basis," he said. "I do think there are very substantial issues here regarding the scope of immunity, when immunity can be claimed, what is a presidential act."

In the 1970s, Dershowitz was told by President Jimmy Carter's administration that a presidential action can never be private, he noted.

"I was told then that the president can't do anything as a private citizen, everything the president does 24/7, 365 days a year is presidential, so there's a view that says the president really does not act as a private citizen," he said. "But the other side is arguing, when the president is trying to break the law on Jan. 6, that can't be presidential.

"Again, I think he's gonna lose in the Court of Appeals, but I think he has a chance of some kind of a partial victory, at least in the United States Supreme Court, if the United States Supreme Court decides to take this case."

Even Trump's lawyers closed their arguments with a caveat, asking for a stay in the event the Federal Court of Appeals were to rule against presidential immunity in Smith's case against Trump's 2020 presidential election challenge.

"The last words of the argument done on behalf of President Trump was, 'if we lose here, at least give us a stay,' and we'll see if that happens," Dershowitz concluded, noting an anti-Trump D.C. jury would rule against Trump no matter the case.

"These arguments are happening just a couple of months before the scheduled trial date, so a stay would be important.

"There's no chance that Donald Trump could actually win on the merits in front of a D.C. jury. A D.C. jury is overwhelmingly anti-Trump and that's why he has to be focusing on legal issues and focusing on the Supreme Court."

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