Trump defends presidential immunity, even for assassinating political rivals

“Can a president who orders [a special operations group] to assassinate a political rival be subject to criminal prosecution without having been politically convicted [in an impeachment]?” Judge Florence Pan’s question put Donald Trump’s lawyer John Sauer on the ropes Wednesday at a hearing in federal court in Washington. With the former U.S. president present in the courtroom and to keep his extreme legal theory on presidential immunity from collapsing, Trump’s lawyer had to defend presidential immunity even in that hypothetical. The appeals court judges reviewing the appeal in the Washington criminal case for attempts to interfere with the 2020 election results were not at all convinced. They will probably reject the immunity argument, as the judge already did in the lower court, and the case will end up in the Supreme Court.

Trump seems to have taken a liking to the courts. Every time he goes into one, he rises in the polls and his moneymaker of a campaign starts to rake in cash. So, this Wednesday Trump showed up in Washington for the hearing even though he did not need to be there. Despite attending voluntarily and of his own volition, he lied in messages to his supporters and on social media that President Joe Biden forced him to interrupt his campaign just six days before the Iowa caucuses, the kickoff of the primaries for the presidential nomination. Knowing that the cameras were pointed at him, Trump appeared after the hearing with his usual hoaxes and political propaganda — but without taking questions — showing that going to court is already part of his campaign.

Away from Iowa’s freezing temperatures, Washington greeted him with a rainy and unpleasant morning. Perhaps because of that or perhaps because it is all exhausting, there were hardly any onlookers around the federal courthouse complex; only a few hundred journalists and police officers awaited Trump. In contrast to the spectacle of his indictments, this time there was only a lone demonstrator playing circus music at full volume.

Inside the building, in Courtroom 31, on the fifth floor of the E. Barrett Prettyman Building, a short distance from the Capitol, Sauer was appealing a decision by Judge Tanya Chutkan, the judge presiding over the case, in which she rejected Trump’s immunity outright. Special prosecutor Jack Smith wanted the Supreme Court to decide on the matter directly so as not to waste time and to be able to start the trial on March 4, the date it is scheduled to begin. But the Supreme Court decided to wait its turn, a small victory for Trump because it delays the trial.

“Opening Pandora’s box”

Sauer asserted that the U.S. Constitution grants immunity for acts done in the performance of official duties. At the hearing, the lawyer argued that if Trump is allowed to be prosecuted now, the U.S. would enter an era of score-settling in which one president prosecutes the previous one. “Authorizing the prosecution of a president for official acts would open a Pandora’s box from which this nation may never recover,” he warned graphically. Trump later repeated that expression at his press appearance. Still, Trump has already explicitly promised a presidency of revenge and retaliation if he returns to the White House.

According to Sauer, in order for a U.S. president to be tried for acts that he can be interpreted to have performed in the exercise of his office, he must first be impeached by the House of Representatives and then convicted by the Senate with a two-thirds majority. In addition, Sauer argued that a president cannot be tried because of the separation of powers.

After his opening argument, the three Court of Appeals judges, two of whom were appointed by Democratic presidents, began to question Sauer’s arguments. Progressive Florence Pan was especially incisive. In the face of Sauer’s evasions, she cross-examined him and repeated the same question, sometimes as many as seven times, until she got something resembling an answer.

She put Sauer on the spot by reducing his argument to absurdity: she asked him whether, absent an impeachment conviction, a president could be prosecuted for selling nuclear secrets, pardoning criminals, or ordering a special commando to assassinate a political rival. He focused on that question, backing Trump’s lawyer into a corner, as the president sat impassively with a blank stare, at his lawyers’ table. “He would have to be and would be quickly impeached and convicted [by the Senate] before criminal prosecution,” the lawyer replied. The judge persisted, but the lawyer still maintained the argument that a president could not be tried without being impeached and convicted. “So, your answer is no?” the judge insisted. “It’s a hypothetical yes,” the lawyer replied.

Sauer’s argument echoes that of another Trump lawyer before a New York court in 2019, in which he said the president could not be investigated or prosecuted while in the White House, even for shooting someone in the middle of Fifth Avenue; in 2016, Trump himself insisted that he could do so and not lose votes.

Even Judge Karen Henderson, appointed by Republican George H.W. Bush, seemed skeptical: “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” she said.

Prosecutor James Pearce insisted that Trump is not immune: “The president has a unique constitutional role, but he is not above the law. Separation of powers principles, constitutional text, history, precedent and immunity doctrines all point to the conclusion that a former president does not enjoy prosecutorial immunity,” he argued.

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