Trump Attorney Tells Judges Presidential Immunity Would Even Cover Assassinating Rivals, Selling Pardons – The Messenger
Advancing a sweeping interpretation of executive immunity, Donald Trump’s attorney told a federal appeals court on Tuesday that U.S. presidents could not be prosecuted for selling pardons or assassinating political rivals through SEAL Team Six.
Trump’s lead attorney D. John Sauer argued that only a president who has been impeached and removed from office in a Senate trial potentially would be subject to prosecution for those kinds of alleged crimes.
A three-judge panel appeared extremely skeptical of Trump’s vision of absolute immunity, sharply questioning and interrupting Sauer during the opening minutes of the oral arguments with the former president himself sitting nearby.
“Could a president order SEAL Team Six to assassinate a political rival? That’s an official act–an order to Seal Team Six,” U.S. Circuit Judge Florence Pan asked Sauer.
“He would have to be, and would speedily be, you know, impeached and convicted before the criminal prosecution,” Sauer replied, setting a pre-condition for such prosecution in Pan’s hypothetical.
Though impeached twice by a then-Democratic controlled House of Representatives, Trump was acquitted twice during Senate trials with a chamber then under the control of his political party. Trump has been indicted four times since that time in New York, Florida, Washington, D.C and Georgia.
Special Counsel Jack Smith’s assistant James Pearce noted that Trump’s proposed rule would allow a president to obtain immunity for crimes by resigning before any possible Senate conviction.
"That is an extraordinarily frightening future," Pearce said.
Sauer insisted that the vision he articulated has been in place for nearly 250 years.
“That’s not a frightening future,” Sauer said. “That’s our republic.”
The U.S. Court of Appeals for the District of Columbia is considering an appeal in Trump’s election-obstruction case in the nation’s capital, where the trial judge already has rejected his immunity arguments.
"Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong 'get-out-of-jail-free' pass," U.S. District Judge Tanya Chutkan wrote in a resounding ruling in December.
Reviewing that decision are Circuit Judges Karen Henderson, J. Michelle Childs and Florence Pan. Henderson was appointed by former President George H. W. Bush, while Childs and Pan were appointed by President Joe Biden.
As soon as the hearing began, Childs sounded a note of skepticism over the court’s jurisdiction to hear an appeal on this issue before trial. An appeal before a trial is known as an interlocutory appeal, and Childs — a Joe Biden appointee — noted that the Supreme Court’s precedent in Midland Asphalt Corp. v. United States held that one is not available unless it “rests upon an explicit statutory or constitutional guarantee that trial will not occur.”
Both Special Counsel Jack Smith’s prosecutors and Trump oppose the court denying the appeal on jurisdictional grounds, an outcome that would guarantee that the appeal would not interfere with the court’s calendar — but would leave the merits of the immunity issue unresolved.
Trump's appeal centers on U.S. District Judge Tanya Chutkan's order on Dec. 1 denying Trump's motion to dismiss the charges on the grounds that he couldn't be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."
In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.
Trump's legal team responded to Chutkan's denial by filing both an appeal with the D.C. Circuit Court of Appeals seeking reconsideration of the motion to dismiss charges and a motion to "stay," or pause, proceedings in the case pending the final resolution of his appeal. In an order last month, Chutkan granted Trump's request to halt progress toward trial in the case until his appeal is resolved.
Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges.
His trial in Washington, D.C. is scheduled to begin on March 4 — the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia — but that date is widely expected to change due to delays resulting from the appeal process.