Trump attorney John Sauer argued that under certain circumstances, a president could order Seal Team Six to assassinate a political rival and not face prosecution in a stunning exchange at an appeal hearing on former President Donald Trump’s claim of presidential immunity.
The DC Circuit Court of Appeals heard oral arguments on Tuesday, January 9, on the issue of presidential immunity after Judge Tanya Chutkan denied two motions to dismiss based on First Amendment and presidential immunity claims.
The appeal was heard by a three-judge panel consisting of Judge J. Michelle Childs, who was nominated by President Joe Biden in January 2022 and confirmed in July 2022; Judge Florence Pan, nominated by Biden in May 2022 and confirmed in September 2022; and Judge Karen LeCraft Henderson, who was appointed by then-President George H.W. Bush in 1990.
On Tuesday morning, Judge Pan grilled Sauer on a series of hypotheticals that resulted in Sauer arguing that a president could only face prosecution for such an assassination if he were impeached and convicted first:
JUDGE PAN: And so, in your view, could a president sell pardons or sell military secrets? Those are official acts, right? It’s an official act to grant a pardon. It’s an official act to communicate with a foreign government. And such a president would not be subject to criminal prosecution.JOHN SAUER: Uh, the sale of pardons example is an excellent example, because there were allegations about a sale of
a pardon, essentially, when it came to President Clinton’s, uh, pardon of Marc Rich and the US DOJ, carefully and for the very reasons we’ve emphasized in our brief, decided not to prosecute President Clinton with that because it raised concerns about whether or not a president could be prosecuted for his official acts, was actually an op ed in the National Review from our editor.JUDGE PAN: But your position is that he can’t be prosecuted for that unless he’s impeached.JOHN SAUER: And that was it. As long as it’s an official act, I mean, in certain cases, purely private conduct under Clinton, against Jones, he’d be subject to prosecution for that so long as he’s not in office. But as long as it’s officia act–JUDGE PAN: Could a president order Seal Team Six to assassinate a political rival? That’s an official act, an order to Seal Team Six.JOHN SAUER: He would have to be and would speedily be, you know, uh, impeached and convicted before the criminal prosecution–JUDGE PAN: But there would be no criminal prosecution, no criminal liability for that?JOHN SAUER: Chief Justice’s opinion in Marbury against Madison and, uh, uh, and our Constitution and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not.JUDGE PAN: I asked youa yes, no, yes or no question. Could a president who ordered Seal Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution.JOHN SAUER: If he were impeached and convicted first.JUDGE PAN: So your answer is no.JOHN SAUER: My answer is qualified. Yes. There’s a political process that will have to occur under the structure of our Constitution, which would require impeachment and conviction by the Senate in these exceptional cases, as the OLC memo number itself points out from the Department of Justice, you’d expect a speedy impeachment conviction.But what the founders are much more worried about than using criminal prosecution to discipline presidents was what, uh, James Madison calls in Federalist number 47, the, you know, the new-fangled and artificial treasons. They 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.JUDGE PAN: I’ve asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts. And I’ve asked you, would such a president be subject to criminal prosecution if he’s not impeached or committed? And your answer, your yes or no answer is no.JOHN SAUER: I believe I said qualified yes. If he’s impeached,convicted first.JUDGE PAN: Okay. So he’s not impeached or conviction and convicted. Look, put that aside. You’re saying a president could sell pardons, could sell military secrets, could order Seal Team Six to assassinate a political rival?JOHN SAUER: Sale of military secrets strikes me as something that might not be held to be an official act. The sale of pardons is something that’s come up historically and was not executed.JUDGE PAN: Your brief says that communicating with an executive branch, agencies, an official act and communicating with a foreign government, it’s an official act. That’s what presidents do.
Watch above via CNN.