Home » The Incredible, Inconsistent, Incoherent Legal Arguments About Presidential Immunity Made by Donald Trump’s Lawyer

The Incredible, Inconsistent, Incoherent Legal Arguments About Presidential Immunity Made by Donald Trump’s Lawyer

by Eric Bennett
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The Unbelievable, Inconsistent, Incoherent Authorized Arguments About Presidential Immunity Made by Donald Trump’s Lawyer

Throughout Tuesday’s oral argument earlier than america Circuit Courtroom of Appeals for the D.C. Circuit, attorneys for former president Donald Trump asked the three-judge panel to imagine that up is down and down is up. John Sauer, who represented Trump, turned inside out the clear language of the Structure, and tried to blithely solid apart positions taken by different Trump attorneys throughout his second impeachment trial.

Cynics who imagine that attorneys will say something to win a case wouldn’t have been shocked by Sauer’s verbal gymnastics. As Henry David Thoreau as soon as observed, “A lawyer’s fact isn’t the reality… however a constant expediency.”

However even for them, Sauer’s efficiency strained credulity.

With Trump wanting on, Sauer had the unenviable process of trying to remake the authorized world, in addition to strange logic, to suit with the way in which Trump sees issues. Not surprisingly, the judges did not seem to be buying what Sauer was promoting.

As Choose Karen Henderson, a George H.W. Bush appointee, observed, “I believe it’s paradoxical to say that… [a president’s] constitutional obligation to take care that the legal guidelines be faithfully executed permits him to violate felony legislation.”

Earlier than wanting extra carefully at Sauer’s Houdini-like efforts, let’s recall that the center of Trump’s case is the competition that the President of america is above the legislation. When Federal District Choose Tanya Chutkan, who’s presiding over the election interference case introduced in opposition to Trump by Particular Counsel Jack Smith, turned apart Trump’s immunity declare, she noted that the previous president was asking her to convey on him “the divine proper of kings to evade the felony accountability that governs his fellow residents.”

Because the lawyer George Conway puts it, “Trump’s most important argument on this enchantment is that presidents can’t be prosecuted for his or her official acts. That argument relies on a line of civil circumstances establishing that presidents can’t be held liable by way of financial damages for his or her official actions—extra particularly, because the Supreme Courtroom held in 1981 in Nixon v. Fitzgerald, there may be ‘absolute Presidential immunity from damages legal responsibility for acts throughout the ‘outer perimeter’ of his official duty.’”

Sauer tried to convince the courtroom of appeals to use that proposition within the felony context by arguing that “To authorize the prosecution of a president for his official acts would open a Pandora’s field from which this nation might by no means get better.”

He provided two examples of the “parade-of-horribles” that may be unleased if the courtroom dominated {that a} former president may very well be prosecuted, neither of which had been analogous to the crimes Trump allegedly dedicated. “May George W. Bush,” Sauer requested, “be prosecuted for obstruction of an official continuing for allegedly giving false info to Congress to induce the nation to go to struggle in Iraq underneath false pretenses? May President Obama be probably charged with homicide for allegedly authorizing drone strikes focusing on U.S. residents situated overseas?”

However the judges didn’t take the bait. As a substitute Choose Florence Pan, making her personal level in regards to the “divine proper of kings,” requested Sauer, “I perceive your place to be {that a} president is immune from felony prosecution for any official act, even when that motion is taken for an illegal or unconstitutional goal. Is that right?”

Sauer responded sure, although he famous {that a} president may very well be topic to a felony prosecution if, and solely, if he was impeached within the Home and convicted by the Senate.

Right here, Sauer turned the language of the Structure on its head.

That language states that the Home of Representatives “shall have the only Energy of Impeachment” (Article I, section 2) and that “the Senate shall have the only Energy to strive all Impeachments … [but] no particular person shall be convicted with out the Concurrence of two-thirds of the Members current” (Article I, section 3).

To date so good.

Nonetheless, Sauer bumped into issues with Article I, Part 3, Clause 7. It says that the penalties for an impeached and convicted particular person are restricted to removing from workplace and a bar from holding future workplace and that “the Celebration convicted shall however be liable and topic to Indictment, Trial, Judgment and Punishment, based on Regulation.”

Sauer desires the courtroom to carry that Article 1, Part 3, Clause 7 doesn’t imply what it clearly says. In his view, it signifies that the president solely will be topic to the felony course of if he’s convicted by the Senate.

That studying does violence to the textual content and historical past of the Structure. It additionally would give 34 senators the ability to immunize a president from felony prosecution for even probably the most reprehensible deeds by voting to acquit on an impeachment cost (since conviction within the Senate requires a 2/3 vote).

Choose Pan drove house the hazard of Sauer’s place when she requested him if “a president who ordered SEAL Group 6 to assassinate a political rival” may very well be criminally prosecuted. In response, Sauer once more insisted on his perverse studying of Article 1, Part 3, Clause 7 and reiterated {that a} president might solely be prosecuted for such an act if he was first impeached, convicted, and faraway from workplace by Congress.

He provided a imaginative and prescient of presidential energy that comports with Trump’s own contention that underneath Article II of the Structure, which defines the ability of the president, “ I’ve the best to do no matter I would like as president.”

As The Atlantic’s David Graham argues, Sauer’s argument was additionally “a logical, if scary, extension” of what Trump mentioned in 2016 in regards to the devotion of his followers. “I might stand in the midst of Fifth Avenue and shoot someone, and I wouldn’t lose any voters, okay?” he told a rally in Iowa. “It’s, like, unimaginable.”

In 2023, what’s unimaginable to individuals who imagine within the rule of legislation is that Trump desires the courts to show his musings into constitutional doctrine.

Throughout Tuesday’s oral argument Sauer was additionally requested to reconcile his place on the president’s immunity from prosecution with what Trump’s attorneys mentioned about the identical subject throughout his impeachment trial in February 2021.

In his opening assertion, Bruce Castor had argued that if the Senate didn’t convict Trump of the excessive crimes and misdemeanors charged by the Home of Representatives he nonetheless may very well be arrested and charged with a criminal offense. As Castor noticed, “A excessive crime is a felony, and a misdemeanour is a misdemeanour. After he’s out of workplace, you go and arrest him. The Division of Justice does know what to do with such folks.”

One other of Trump’s attorneys, David Schoen, additionally conceded the point that a former president would not be immune from criminal prosecution for acts carried out whereas in workplace. As Shoen put it, “We’ve a judicial course of on this nation. We’ve an investigative course of on this nation to which no former officeholder is immune. That’s the course of that needs to be working its course. That’s … the suitable one for investigation, prosecution and punishment.”

On Tuesday, Sauer tried to square the circle by arguing that Trump’s impeachment attorneys had solely acknowledged that “we’ve a judicial course of on this nation, interval.” They “didn’t say that we might by no means elevate an immunity protection” in response to felony prosecution.

Choose Pan would have none of it. Trump, she insisted, “was president on the time, and his place was that no former officeholder is immune, and in reality, the argument was there’s no must vote for impeachment as a result of we’ve this backstop, which is felony prosecution, and plainly many senators relied on that when voting to acquit.”

Graham characterised the performances of attorneys like Sauer by noting, “What attorneys say in courtroom isn’t the identical as what politicians say or will do in workplace, however no regular politician would permit such an argument to be made on his behalf, particularly whereas sitting within the courtroom.” However he rightly warned that whether or not Trump wins in courtroom, “As we speak’s authorized argument might very properly be subsequent yr’s train of presidential energy.”

Source / Picture: verdict.justia.com

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