As Smith’s team has noted in arguing against Trump, the former president’s lawyers during his second Senate impeachment trial said in very clear terms that they believed a president could in fact be criminally prosecuted by the Department of Justice — the opposite of what his legal team is currently arguing.

“If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense — and let’s understand, a high crime is a felony and a misdemeanor is a misdemeanor; the words haven’t changed that much over time — after he is out of office, you go and arrest him,” one of his attorneys said in opening statements during his impeachment trial in 2021, shortly after Jan. 6.

“We have a judicial process in this country, we have an investigative process in this country, to which no former officeholder is immune,” Trump’s attorney said then.

But now, facing federal charges related to Jan. 6, Trump’s lawyers argue a president can only be prosecuted if he is impeached, convicted by the Senate and removed from office.

The Senate in his second impeachment trial acquitted, though a majority of lawmakers voted to convict him.

-ABC News’ Katherine Faulders

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