Analysis | Trump's attorney: Presidential coup attempts may be unprosecutable – The Washington Post
While their client was in a criminal courtroom in New York on Thursday, attorneys for Donald Trump were in Washington, arguing to the Supreme Court that the former president had broad immunity from criminal prosecution for actions he undertook while in office.
Trump’s legal team had tried to apply the same principle to derail that New York trial, without luck. The case at issue before the Supreme Court, though, was specifically oriented around his federal prosecution for having attempted to block President Biden’s assumption of the presidency. In arguing that Trump should be immune from prosecution on (at least some of) those charges, his attorneys argued that a president, in the abstract, might be immune from prosecution for even more explicitly attempting to overthrow the government.
That argument came as the attorney representing Trump, John Sauer, was offered the idea of a coup attempt as a hypothetical. Sauer, at the bench and in the team’s filing, argued that presidents had immunity from criminal prosecution for official acts, unless the chief executive was first impeached and convicted by the Senate. So, Justice Sonia Sotomayor asked, would a president asking the military to engage in a coup be an “official act” — and therefore not prosecutable?
Here’s the exchange that followed.
This is a fascinating back-and-forth, and not only because it is one predicated on an attorney for a former president arguing that, when in office, that president could have ordered the Army to lock up Joe Biden without facing criminal sanction. It’s also fascinating because of Sotomayor’s final argument: Why would the people creating a new structure for nationhood in response to the oppression of King George III — specifically in response to seeing resources taken by a government over which they had no say — create a country with an unaccountable leader? (Sauer’s answer, in part, was that they created impeachment as an alternative.)
But now step back and consider the context in which this discussion was taking place. Sotomayor, perhaps more than any other justice throwing hypotheticals at the dueling attorneys, centered this question on a scenario very much adjacent to the D.C. trial itself. Sauer was not just arguing that a president might call for a coup as an official, unprosecutable act — he was arguing that as a defense against Trump’s prosecution for attempting to subvert Biden’s election! Sotomayor’s question “depended on the circumstances,” he said, but, at other points, he responded to specific questions about the circumstances undergirding Trump’s actual effort to retain power.
We can also take this a step further. The debate that unfolded on April 25 had been put in motion two months before, at the end of February. During the intervening two months, the trial in D.C. did not move forward — meaning that there was no evidence presented to a jury to adjudicate whether Trump’s post-2020 actions were legally acceptable. For two months, to put it in stark terms, Trump’s effort to subvert his successor’s inauguration was immune to prosecution thanks to the conservative-majority Supreme Court, first, having determined his argument had sufficient merits to be considered and, second, waiting a while before considering it.
It is possible at this point, and perhaps likely, that the federal case in D.C. never goes to trial. If it doesn’t begin before the November election and Trump wins the presidency, Trump can derail the case entirely. He will have attempted to retain power — without triggering UCMJ concerns! — and faced no accountability for doing so.
Should the court ultimately reject the argument offered by Sauer, in other words, it will be significant when considering the actions of future presidents. But that Sauer was making the argument at all was a reflection, to a significant extent, that his defense of Trump’s post-2020 actions as non-prosecutable had already achieved the desired result.
The latest: The Supreme Court appeared ready to reject Donald Trump’s sweeping claim that he is immune from prosecution on charges of trying to subvert the 2020 election, but in a way that is likely to significantly delay his federal trial. Here are key takeaways from the Supreme Court argument.
The charges: Former president Donald Trump pleaded not guilty to charges that he plotted to overturn the 2020 election in the run-up to the Jan. 6, 2021, attack on the U.S. Capitol. Here’s a breakdown of the charges against Trump and what they mean, and things that stand out from the Trump indictment.
The trial: The March 4 trial date was taken off the calendar and jury selection was postponed indefinitely while the Supreme Court reviews Trump’s immunity claim.
The case: The special counsel’s office has been investigating whether Trump or those close to him violated the law by interfering with the lawful transfer of power after the 2020 presidential election or with Congress’s confirmation of the results on Jan. 6, 2021. It is one of several ongoing investigations involving Trump.
Can Trump still run for president? While it has never been attempted by a candidate from a major party before, Trump is allowed to run for president while under indictment in four separate cases — or even if he is convicted of a crime.