Yesterday a three-judge panel of the DC Circuit Court of Appeals entertained oral arguments from Trump’s attorney, D. John Sauer, as to a president’s “absolute immunity” from criminal liability for acts committed while president. Not heard in on-line recordings was, “Are you serious”?
(1) Absolute Immunity
Judge Pan did offer skepticism through her hypothetical: Can a president order an Executive Branch subordinate (e.g., Seal Team 6) to assassinate a political opponent, and be immune from criminal liability purely because he was president when committed that crime?
Sauer tap-danced himself into a corner. First, he claimed that, if the president ordered the assassination of a political opponent, “he would be immediately impeached”. Specious. Two failed impeachments of Trump prove that Republican senators will acquit regardless of the facts and the law.
The implication of Sauer’s argument is that a president could order the assassination by US forces of a political opponent, avoid impeachment and conviction by promptly resigning, and enjoy immunity from prosecution. Apparently, as of 2023, for Trump and fellow Republicans “no one is above the law” doesn’t mean what it says.
Second, Sauer asserted that “absolute immunity” means that the president could only be prosecuted if he first were impeached and convicted. What Judge Pan did not ask in response was, What source can you cite for that bold proposition? Isn’t this pure invention on your part? It’s so simply because you say it?
Judge Pan did point out that Sauer’s assertion contradicts his “absolute immunity” argument. If the president had absolute, no-questions-asked immunity, why would—as just asserted by Sauer—impeachment and conviction be required as conditions precedent to even post-presidency immunity?
More generally, Sauer also wasn’t asked to explain what, in a Constitutional framework designed around checks and balances, suggests that anyone, regardless of branch of government, is absolutely immune against prosecution for criminal acts. No judge on the panel deemed this proposition to be “absurd”.
Naturally, Sauer’s argument contradicts (i) GOP babble, during Impeachment Circus I and II, about Trump’s being subject to prosecution after he left office; and (ii) OLC’s policy memo precluding prosecution of sitting, but not former presidents. This argument should fail, at least until it gets to the Supremes.
(2) Floodgates
Judge Henderson—a 1990 Bush Sr. appointment who has lurched Trump-ward in recent years; see, for example, her dissent in the case related to Trump’s tax records—raised the concern: “How do we stop the floodgates? OLC [in its policy memo] worried about necessarily political prosecutions.”
The floodgate concern seems contrived by a judge who wants to help Trump, but who is hamstrung by unfavorable facts . It’s also odd for a conservative (purportedly “anti-activist”) judge to speculate about political consequences or executive-branch concerns with “political prosecutions,” matters beyond her judicial brief.
Her purported concern mirrors claims that Trump’s prosecution by Biden’s DOJ is “political”. The flawed implication is that the indictment of any person who happens to be an elected politician is, by definition, a “political prosecution” (or, in Trumpworld, “persecution”).
The proposition strays far afield of checks and balances. It posits that it’s not a defendant’s conduct, but his personal status as a politician, which determines a prosecution’s legitimacy. How is this not the equivalent of an artistocracy, albeit one that’s elected? Do voters know what their elected representative are immune?
Henderson implicitly predicts that, if Trump were not granted immunity, a future Republican administration would indict Biden for political reasons. This may happen (and, under Trump, would be guaranteed to happen). So what? It’s the courts’ job to adjudicate whatever cases come their way.
Missing from Henderson’s floodgate concern, and much as Trump wants to avoid it, is the reality that Smith’s indictment of Trump alleges well-pleaded facts, specific acts in violation of specific statutes. That it’s a politician who allegedly committed those acts doesn’t make the prosecution “political,” let alone a “persecution”.
And if the alleged facts are purely “political,” i.e., politically motivated, Judge Chutkan has the power under existing rules of procedure to dismiss the indictment. This holds for all future ex-presidents who, like every defendant, will be entitled to due process, including the rights of appeal.
Society and its politics always entail the balancing of risks and harms. As Henderson and the like-minded see it, they’d rather Trump skated than deal with possible, and highly speculative, future prosecutions of ex-presidents, as if the country’s judicial machinery weren’t able to adjudicate those cases like all others.
Curious about Henderson’s risk calculation is its silence on the need for deterrence, a standard feature of criminal justice. We punish crimes to deter a specific defendant before us as well as future scamps who contemplate criming. For reasons no one has identified, judges continue to shy away from applying this tool to presidents.
