Suppose a president "ordered SEAL Team Six to assassinate a political rival" but "was not impeached," D.C. Circuit Judge Florence Y. Pan said while questioning Donald Trump's lawyer, D. John Sauer, on Tuesday. "Would he be subject to criminal prosecution?"
Sauer repeatedly resisted giving a straight answer to that question. But based on the position that Trump has taken in the federal case charging him with unlawfully trying to overturn the results of the 2020 presidential election, the answer was clearly no. According to Trump's lawyers, a former president can be prosecuted for "official acts," which would include his orders to a military unit like SEAL Team Six, only if he is first impeached by the House and convicted by the Senate based on the same underlying conduct.
Pan, who also posed hypotheticals involving a president who "sell[s] pardons" or "sell[s] military secrets," was troubled by the implications of that position. So were the other two judges on the D.C. Circuit panel, J. Michelle Childs and Karen L. Henderson. None of them seemed inclined to accept the argument that presidential immunity bars Special Counsel Jack Smith from prosecuting Trump for his efforts to reverse Joe Biden's victory.
Trump, who showed up for the hearing to underline his argument that he is a victim of "election interference" disguised as criminal justice, is asking the appeals court to overrule U.S. District Judge Tanya Chutkan, who last month concluded that "former Presidents enjoy no special conditions on their federal criminal liability." If the D.C. Circuit panel agrees with Chutkan, Trump can appeal that decision to the full court or the Supreme Court. Depending on how long that process takes, it could delay the start of Trump's trial, which is currently scheduled for early March.
According to Sauer, the case against Trump violates a longstanding principle, rooted in the constitutional separation of powers, that "the president's official acts" are "never examinable by the courts." The only exception, he says, is described in the Impeachment Judgment Clause: "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law."
Sauer reads that clause to mean that prosecution is allowed only after removal via impeachment, and then only if the criminal case is based on the same actions that led to impeachment. A president who ordered the assassination of a political opponent, Sauer told Pan, "would speedily be impeached and convicted before the criminal prosecution." But suppose he avoided removal by resigning, as Richard Nixon did, or by committing the crime at the very end of his term. In either scenario, he would literally get away with murder, assuming that Sauer's understanding of presidential immunity is correct.
The case against Trump involves an analogous situation. Trump was impeached based on essentially the same conduct as Smith's election interference case. But when the Senate tried him, he was no longer in office. Trump's lawyers argued that the Senate did not have the authority to try a former president, and several Republicans who voted to acquit him, including Majority Leader Mitch McConnell (R–Ky.), accepted that argument.
McConnell emphasized that Trump could still face criminal prosecution. But according to Sauer's interpretation of the Impeachment Judgment Clause, the process that McConnell presented as an alternative to a Senate conviction is foreclosed without a Senate conviction. So this very case shows that a president, under the Constitution as Trump's lawyers understand it, can avoid both political accountability via impeachment and criminal liability via prosecution as long as he times his crimes with those goals in mind.
The "absolute immunity" that Sauer is advocating also would shield a former president from prosecution for crimes that did not come to light until after he left office. Even a president who was removed for "high crimes and misdemeanors"—say, ordering the FBI to frame his political enemies—could not be prosecuted for a different offense, such as accepting bribes in exchange for government contracts.
As Sauer sees it, such possibilities pale beside the potential for politically motivated prosecutions of former presidents. That threat, he argues, would have a chilling effect on every president's ability to perform his duties. "If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision," he told the D.C. Circuit panel, and "worry 'after I leave office, am I going to jail for this, when my political opponents take power?'—that inevitably dampens the ability of the president" to do his job.
Sauer, of course, portrays the case against Trump as an example of that very danger. President Biden's likely opponent in this fall's election "is being prosecuted by the administration that he's seeking to replace," Sauer said. "That is the frightening future. That is tailor made to launch cycles of recrimination that will shake our republic."
Democrats, Sauer suggested, may regret opening the door to the prosecution of former presidents. "It would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border," he said, and "let a Texas jury and Texas judge sit in judgment over the validity" of his immigration policies.
The government's lawyer, John Pearce, argued that Sauer was exaggerating the threat of "vindictive, tit-for-tat prosecutions." While no former president has previously faced criminal prosecution, Pearce said, that's because no president has ever done what Trump is accused of doing. "Never before [have] there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system," he told the judges. "And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren't some sort of mechanism by which to reach that criminally."
Sauer says the threat of criminal prosecution would have a paralyzing effect on the presidency. But that has not happened so far, even though the possibility of prosecuting former presidents has never been definitively foreclosed. To the contrary, public officials generally seem to have assumed that a former president can be prosecuted for crimes he committed in office, even if he was never impeached. "At least since the Watergate era 50 years ago," Pearce said, there has been "widespread societal recognition, including by presidents and the executive branch, that a former president is subject to criminal prosecution."
As Judge Childs noted, Gerald Ford was operating under that assumption when he pardoned his predecessor "for all offenses against the United States" he may have committed as president. In response to Childs, Sauer claimed that pardon involved "purely private conduct," as opposed to "official acts." But that is plainly not true, since the proposed articles of impeachment against Nixon describe several official (but corrupt) acts.
The articles alleged that Nixon used "the powers of his high office" to subvert investigations of the Watergate break-in and the subsequent cover-up. They accused him, for example, of "making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States" and "interfering or endeavouring to interfere with the conduct of investigations" by the FBI and the Justice Department. The charges against Nixon were "not about private conduct," Pearce said. Among other things, he noted, Nixon was accused of "using the CIA to try to interfere with an FBI investigation."
The allegations against Nixon fit comfortably within the category of "official acts" as Sauer defines it. When Trump pressured state and federal officials to embrace his stolen-election fantasy and help him stay in office, his lawyers say, he was doing his job by "tak[ing] care that the laws be faithfully executed"—in this case, the laws governing presidential elections. Likewise when Trump recruited "alternate" electors and asked state legislators to recognize them instead of Biden's electors. Since conferring with legislators and executive-branch officials about preserving the integrity of federal elections fell "within the 'outer perimeter' of his official responsibility," Trump's lawyers argue, he cannot be prosecuted for doing that, regardless of his motive or intent.
Judge Henderson, the only Republican appointee on the D.C. Circuit panel, did not dismiss Sauer's concern about politically motivated prosecutions. "How do we write an opinion that would stop the floodgates?" she asked Pearce. But even Henderson was skeptical of the way Trump's lawyers portray the conduct underlying the charges against him. "I think it's paradoxical," she told Sauer, "to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws."
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