Former President Donald Trump is trying to quash his indictment for the attempt to steal the 2020 election by arguing before a federal appeals court that presidents have an absolute immunity from criminal prosecution, even after leaving office.

Trumps claim of absolute immunity comes in the federal case charging him with four felony counts related to his efforts to overturn his reelection loss that led up to the Jan. 6, 2021, insurrection. The former president also faces a state prosecution in Georgia over attempts to steal the states election, a federal case related to illegally taking classified documents, and a trial in New York over hush money payments to a porn actor.

In his appeal in the federal election theft case, Trump makes two arguments. The first is that he has permanent absolute immunity from criminal prosecution for any acts undertaken during his presidency. The second is that under the theory of double jeopardy, he cannot face criminal charges for acts upon which he was impeached but not convicted.

The structure of our government, the text of the Constitution and its early commentators, common-law immunity doctrines, our political history, the Supreme Courts analogous immunity doctrines, and the policy considerations rooted in the separation of powers all dictate that no President, current or former, may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate, Trumps appeal brief states .

But his arguments run counter to centuries of judicial precedent and constitutional interpretation, as well as the intent of the Constitutions authors and the very conception of the United States as a democratic republic governed by the rule of law enshrined in a constitution.

Aside from flying in the face of the nations history and system of government, both of Trumps arguments would create perverse incentives for presidents to break the law to stay in office, and for their partisans in Congress to immunize them from criminal prosecution by impeaching but not convicting them.