This morning, Donald Trump traveled to DC to attend oral argument at the Circuit Court hearing on his presidential immunity claims. It’s the first hearing he’s attended in the election interference case, and he may well regret his decision to show his face today.
In short, it was a beatdown.
Judges Karen LeCraft Henderson, Michelle Childs, and Florence Pan took turns batting around Trump’s attorney D. John Sauer, who was reduced to plaintively wondering if his time was up already and didn’t the court have more pressing matters to attend to?
The knifing started almost immediately with Judge Pan posing the hypothetical of a president who ordered SEAL Team 6 to assassinate his political rival. Trump argues that a president is immune from prosecution for all official acts, and that he can only be criminal prosecuted for crimes committed in office if he is first impeached by the House and convicted by the Senate. Commanding the military is unquestionably an official act, so by Trump’s logic, a president could never be prosecuted for it, even in the case of dispatching death squads. Or if he could be prosecuted, that prosecution would be dependent on Congress first impeaching and convicting him.
Sauer had no good answer for this, and so he resorted to yelling about Bill Clinton selling pardons, while unsubtly threatening that President Biden would soon be indicted in Texas if the court refused to grant Trump absolute immunity for all crimes committed while in office.
On rebuttal, Judge Pan moved in for the kill, asking if the instant prosecution would be appropriate had Republicans agreed to impeach Trump in 2021. Sauer tried to dodge, calling the charges against his client multiply defective. But by then, the damage was already done.
Judge Childs seemed most interested in the threshold issue of whether the denial of dismissal based on presidential immunity was immediately appealable. On this, both the plaintiff and defendant were in agreement, although perhaps for different reasons. Trump has made it clear that his plan is to delay all the cases against him until after the election. But AUSA James Pearce, arguing on behalf of the government, urged the court to decide the issue now, to avoid protracted appeals later.
Pearce got very little pushback from the court and was allowed to bury Trump’s bizarre double jeopardy argument and dance on its grave more or less uninterrupted. Although, to be fair, arguing that impeachment in the House and acquittal in the Senate means that jeopardy attaches is spectacularly ridiculous, and directly contradicted by writings from the founding fathers. Plus there’s this uncomfortable admission from David Schoen, Trump’s lawyer in the second impeachment:
The Constitution expressly provides in article I, section 3, clause 7 that a convicted party, following impeachment, ‘‘shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to law’’ [after removal]. Clearly, a former civil officer who is not impeached is subject to the same.
Judge Henderson, the most conservative jurist on the panel, seemed interested in developing a presidential immunity standard based not on whether the actions were official, but by dividing the actions into ministerial or discretionary buckets. This rubric seemed unlikely to gain purchase with the other panelists, but it was a lifeline to Sauer, and he took it. Before racing for the exit, the lawyer begged the court to dismiss the case on his maximalist theory of presidential immunity for all acts undertaken while in office. But if not, he implored them to issue a mandate for Judge Chutkan to evaluate the specific conduct act by act to determine whether it was part of Trump’s official (or ministerial or discretionary) duty. That would at least buy him some time, and probably push the case off the trial calendar.
And then, perhaps in deference to his client’s presence in the courtroom, Sauer made the obligatory accusation that President Biden is prosecuting his “chief electoral opponent who is winning in every poll.”
DRINK! If not with Sauer, than in his honor. Because after that asskicking, he’s going to need a stiff one.
US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she writes the Law and Chaos substack and appears on the Opening Arguments podcast.