It’s pretty obvious that Donald Trump is going to lose his case before the three judges on the US Court of Appeals for the District of Columbia Circuit panel. The former President is claiming that all former Presidents are absolutely immune from prosecution for crimes they may have committed while in office. It’s easy to knock that argument down as just bad policy, and the judges did just that at oral argument this week.
Judge Florence Y. Pan asked Trump’s attorney, D. John Sauer, demanding a yes or no answer,“Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?”
Sauer answered that prosecution would only be permitted if the President were first impeached by the House and convicted by the Senate. Of course that can’t be right. It would mean that a President with a large majority in both Houses of Congress could do virtually anything without legal consequences. One might argue that such a clear “crime or misdemeanor” would always trigger a bi-partisan impeachment, but after seeing most Republicans refuse vote to eject certified rotter George Santos from the House and Democrats line up behind Rep. Bowman after he set off a fire alarm to disrupt a House vote and then lied about it, I am no longer sure.
Sauer’s answer, as the Times’ Adam Liptak pointed out, was redolent of the answer that doomed the government’s case in during oral argument in the Citizens United campaign finance case in 2009. The U.S.’s attorney agreed with hypothetical assertion that under the law being challenged, Congress could in theory ban books urging the election of political candidates. That was game over for the Democrats trying to limit the constitutional right of organizations and corporations to express their positions during political campaigns. Similarly, the latest exchange should end the expansive immunity argument that has been floated before but never decisively settled in court. After the D.C. Circuit rejects it, there will probably be another appeal to SCOTUS, which will also kick the idea into the gutter where it belongs.
And then: watch out. This is how the Democrats’ “Get Trump by any means possible” mania and Trump’s “Go ahead, I dare you!” responses to it are gradually weakening the Constitution and the Republic. There are lots of holes and vagaries in Mr. Madison’s masterpiece, and this is one of them. (Impeachment is another.) The question of whether a President had immunity from criminal prosecution was never an urgent one because both parties recognized that the office couldn’t function if the President was going to be concerned that his actions could result in criminal charges after he left office, and also because anyone reaching the Presidency was assumed to be of such high character that any technical criminal violations would be made in the good faith belief that such measures were in the best interests of the nation.
Thus no serious efforts were made to prosecute George W. Bush for war crimes (because of the use of waterboarding and other means of torture during his administration) or Barack Obama for approving drone executions of American citizens abroad without due process of law. (I think that’s murder.) Now, however, just as Democrats shattered the important tradition that impeachment would never be sought by a purely partisan House majority against a POTUS from the other party, now the traditional restraint exercised by both parties that ex-Presidents should not be subjected to post-presidency prosecutions is going to evaporate. Before Trump, parties as well as the public didn’t want to see such prosecutions, not because the Constitution forbade them, but because they were a dangerous and destructive practice to begin, and once begun, they would become a political weapon that promised mutually assured destruction. In other words, such prosecutions have always been theoretically permitted, but, like impeachments, there needed to be a great reluctance bordering on near refusal to undertake them.
That restraint will be gone forever when the three judges rule against Trump. It is likely that there will be criminal charges filed against Joe Biden if he leaves office alive, and probably most Presidents thereafter.
Good job, everybody.
I should add that just as there is no ethical decision for thjudges in this controversy, since either side leads to deadly slippery slopes, the decision of Trump’s team to pursue the immunity issue was also a proverbial double-edged sword. The Democratic 2024 campaign strategy is to paint Trump as a ruthless aspiring dictator capable of imprisoning and murdering his political foes. Trump’s argument in the current case is that he shouldn’t have to fear legal consequences if he actually did when his political foes are warning he might do, even as he insists that it is absurd to believe that he would ever abuse his office to that extent.
What we have here is double ethics zugzwang.
Ethics Alarms 
The Boogaloo, i.e. Civil War 2.0, is coming. I wonder if I’d look better in blue or gray.
“I wonder if I’s look better in blue or gray.”
I look best in my ghillie suit. For my area, the old US woodland camouflage pattern is the best second choice.
Seriously, I expect CW2 to be fought in every state. It will largely be “urban vs. rural,” and it will be more awful than most people can even imagine.
This is what my husband and I were speculating on just a few days ago. I disagree with you though. It wouldn’t just be rural vs urban. It will be household against household, brother vs brother.
My grandparents, who live in a county of over 3,000 square miles with a population of less than 12,000 people, have a couple at bridge club that has caused anything relating to politics to be prohibited conversation. In 2020, they drove their granddaughter (from their own little town) to Billings so that she could get on a bus where she would join several BLM protests for money for each protest and paid legal fees should she ever get arrested. They were so proud of her.
They would fight on the opposite side of my grandparents in their 1200 person town. It will truly be neighbor against neighbor. I know that this happened some in the Civil War, but not as dramatically as we are likely to see if we get there now.
True, at least in PA woodland camo is best. In NJ it depends. Woodland camo would work in the west, but it might be best to just wear civilian clothes in the built-up east.
I think it actually was Hawaiian shirts. Or maybe that was the uniform of undercover government agents. Or was that polo shirts, aviator glasses and slacks? I can’t keep track anymore.
Is immunity the only question being considered by the D.C. Circuit?
Here is a comment on another blog.
https://reason.com/2024/01/12/how-to-get-away-with-murder-according-to-trumps-lawyers/?comments=true#comment-10397150
– Zeb
The Democrats and the Unreconstructed Hippies in their party have never gotten over not being able to prosecute Nixon, have they?
If they rule against Trump can Obama be prosecuted for the premeditated killing of an American citizen without due process? I do not believe there is a statute of limitations for that crime. They need to be very careful with what they wish for. The appeals court could craft a narrow ruling that does not throw the baby out with the bath water.
What bothers me about the question posed about using the military to assassinate a political rival. Do the judges or Trump’s lawyers know that members of the military do not have to follow illegal orders and such an order would be obviously illegal. Therefore, to suggest that a member of Seal Team 6 would honor such an order slanders that group.
Yeah, I had the same thought about posing that specific argument by hyperbole.
What about the scenario where a campaign official ordered the wiretapping of a political rival based on a known invalid FISA warrant? At least we know that occurred.
That is a very great point!
It is likely that there will be criminal charges filed against Joe Biden if he leaves office alive, and probably most Presidents thereafter
I dont agree with this at all and it’s not historically accurate. President’s since Nixon have been investigated for crimes and have known they are not immune from being prosecuted.
Trump is the first to be criminally charged and this is good. His crimes are particularly egregious and, unlike Nixon, is still seeking public office.
Presidents are not above the law, and balance must be struck between their Presidential duties and powers, and the rule of law.
Trump can’t uphold the constitution by also breaking it.
Which of his crimes is your top most egregious?
Trying to stay in power as President when he lost the election.
What specific crime did he commit in furtherance of this goal and how did he commit it. (Don’t just say Insurrection, tell us what specific action he took that qualifies as an Insurrection).
Conspiracy to defraud the US using fraudulent electors and a bunch of other things, conspiracy against the right to vote…etc
Read the indictment.
He put forth an alternate slate of electors like what JFK did in 1960.
He did not kidnap the real electors and have his supporters pretend to be the real electors.
Nor did he actually stop anyone from voting.
None of his actions violated clearly established law. Harlow v. Fitzgerald 457 U.S. 800, 818 (1982)
I’m sure Trump can use your comment in his defense if he wants.
The indictment was bullshit.
Similarly, he can’t break the Constitution by upholding it.
The indictment is entirely political, and legally junk. No crime was committed by examining all options for opposing an election the President thought, rightly, wrongly or otherwise, illicit. Appointing alternate lectors isn’t shooting political rivals. If there is a colorable, even if wrong, theory that can justify a POTUS doing something in the pursuit of his oath of office, the danger of criminalizing that is palpable.
I almost guarantee Republicans will seek to indict Obama for the droning episode now. If they don’t, it will only be because of fear of a backlash.
“Similarly, he can’t break the Constitution by upholding it.”
Only if upholding the constitution isn’t done illegally, obviously.
But illegally trying to uphold the constitution is illegal.
“entirely political, and legally junk. No crime was committed by examining all options for opposing an election the President thought, rightly, wrongly or otherwise, illicit.”
I don’t agree and I believe a crime was committed.
“Appointing alternate lectors isn’t shooting political rivals.”
But conspiracy to defraud the US by appointing alternate electors is illegal just as murder is…and proves that since a President doesnt have immunity from murder, they don’t have immunity from any other crime either.
“ If there is a colorable, even if wrong, theory that can justify a POTUS doing something in the pursuit of his oath of office, the danger of criminalizing that is palpable.”
He can’t pursue his oath of office illegally.
“I almost guarantee Republicans will seek to indict Obama for the droning episode now. If they don’t, it will only be because of fear of a backlash.”
Let them.
Again, circular arguments. POTUS is authorized to do anything if sufficiently necessary to protect the Constitution. The question is what “necessary to protect the Constitution” and the nation is. FDR directly violated a law by surreptitiously giving aid to the England and Russia before we entered the war. Obama violated the law in continuing bombing after Congressional approval had expired. Having alternate electors ready to go if, and only if, votes in specific states were declared corrupted is peanuts compared to those and other legal breaches by Presidents. But in the previous instances, the opposing party wasn’t willing to go so far to eliminate an opponent.
“POTUS is authorized to do anything if sufficiently necessary to protect the Constitution. “
No they’re not and especially not if it’s illegal.
Unless you’re now arguing the opposite of what you said in your post and claim Presidents are above the law.
“The question is what “necessary to protect the Constitution” and the nation is. “
That’s not the question at all, since nowhere does it say the President can do whatever they want to protect the constitution.
The question is if a President has immunity for breaking the law.
“FDR…Obama violated the law…Having alternate electors ready to go if, and only if, votes in specific states were declared corrupted is peanuts compared to those and other legal breaches by Presidents. But in the previous instances, the opposing party wasn’t willing to go so far to eliminate an opponent.”
These are political arguments and Trump is free to use your arguments in his defense.
But a line exist and where ever that line was, Trump crossed it.
You just don’t think that his crime was actually a crime. And then you argue if it was a crime, it wasn’t that big of a deal.
The rule of law has a very big interest in charging Trump since his actions, are particularly egregious here.
Unless you’re now arguing the opposite of what you said in your post and claim Presidents are above the law.
Presidents are not officially above the law, but throughout our history they have in fact been permitted to be above the law, with the assumption that when a President broke the law, it was for a good reason.
Richard Nixon continued to argue that point until his dying day.
If you read the post, you should understand that this was the point, and why having to make an official rule is far worse than the informal tradition as it has existed.
JFK used alternate electors and it was not considered a crime.
Investigating isn’t charging, Bob. There’s no prohibition against investigating a President—or anyone— for anything. Similarly, a President knowing he can be prosecuted isn’t the same as believing he will. The only President formally charged for conduct while in office was in the case of Grant’s speeding ticket. There has been a lot more criminal conduct than that issuing from Presidents since George left office.
Investigating isn’t charging, Bob. There’s no prohibition against investigating a President—or anyone— for anything.
Never said it was. The point is that Presidents have known for some time that they are not above the law.
There’s also no prohibition from charging a President with a crime either.
“Similarly, a President knowing he can be prosecuted isn’t the same as believing he will. “
And this is a good thing? They SHOULD believe they will be prosecuted if they commit a crime.
You’re arguing they should be above the law.
“The only President formally charged for conduct while in office was in the case of Grant’s speeding ticket. There has been a lot more criminal conduct than that issuing from Presidents since George left office.”
Ok
I don’t understand how someone can illegally uphold the constitution. Can you explain how someone does this?
I also disagree with any equivalence between sending false electors and murder. Only the latter is without remedy.
I’ve lived through presidential elections in which the results were known before sunrise on Wednesday.
The one exception, Bush V Gore, was resolved by SCOTUS before inauguration day.
Trump sticks out for not recognizing that once Biden was sworn in, there was no remedy available to oust Biden regardless of what Trump could prove in court.
For Democrats, there wasn’t any due process to their verdict that Trump was an illegitimate president that relied on voter suppression, fraud, & Putin.
They’ll make the same determination for any future Republican president nominee.
Cyclical argument. I wrote that there was no prohibition against charging a President with a crime, just that once we start doing so, the whole house of cards collapses. And it will.