An appellate attorney for former President Donald Trump, in his effort to assert presidential immunity against criminal charges, suggested that presidents could order the assassination of political rivals without facing criminal charges during a hearing on Tuesday.
Trump, the leading candidate for the Republican presidential nomination in the 2024 election, has been indicted by Special Counsel Jack Smith on four charges related to his efforts to overturn the results of the 2020 presidential election and actions on Jan. 6, 2021. Trump, who was president during the actions for which he was charged, has claimed constitutional immunity, for which an appellate hearing was held at the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday after the federal district judge hearing the case rejected his claim, where his attorney, D. John Sauer, claimed that presidents are immune from prosecution for all official acts taken.
“Could the president order SEAL Team Six to assassinate a political rival? That’s an official act,” asked Judge Florence Y. Pan, an appointee of President Joe Biden to the court.
“He would have to speedily be, you know, impeached and convicted before the criminal prosecution,” Sauer responded, to which Pan replied “but if he weren’t, there would be no criminal liability for that?”
Sauer indicated that there would be no liability for such an action, citing the opinions of Chief Justice John Marshall in Marbury v. Madison, the seminal case where, in 1803, the Supreme Court established the power of judicial review. Pan, however, continued to press him: “I asked you a ‘yes’ or ‘no’ question. Could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, be subject to criminal prosecution?”
Sauer suggested that his answer was a “qualified yes,” whereby only impeachment and conviction of the president by the Senate would open the door to criminal prosecution. “[The Founding Fathers] were much more concerned about the abuse of the criminal process for political purposes, to disable the presidency, from factions and political opponents, and of course, that’s exactly what we see in this case,” Sauer responded.
Sauer also suggested that Pan’s other hypotheticals — of a president selling pardons or selling military secrets while in office — would not be subject to prosecution if they were official acts, except if the president was impeached by the House and convicted by the Senate for the acts. Regarding the events of Jan. 6, 2021, Trump was impeached by the House of Representatives on Jan. 13, 2021, for “incitement of insurrection,” but was acquitted by the Senate on Feb. 13, 2021.
“Given that you’re conceding that presidents can be criminally prosecuted, under certain circumstances, doesn’t that narrow the issues before us to…can a president be prosecuted without first being impeached and convicted?” Pan said. “[A]ll your other arguments seem to fall away, your separation of powers arguments fall away, your policy arguments fall away, if you concede that a president can be criminally prosecuted under some circumstances.”
Trump’s appeal is being heard by a three-judge panel of Pan and fellow Biden appointee J. Michelle Childs as well as Judge Karen Henderson, an appointee of President George H.W. Bush. Trump was present in the courtroom for Tuesday’s hearing.
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