Trump and Jack Smith Appear in Court as Judges Weigh Whether Presidential Immunity Might Cover Ordering a Political Assassination

The assertion by a lawyer for President Trump — with his client and Special Counsel Jack Smith both in the room — that a president could be protected from prosecution even if he ordered Navy SEAL Team Six to assassinate a political rival underscores the stakes of the immunity issue for the trial of Mr. Trump and the prerogatives of the presidency. That hypothetical was posed to Mr. Trump’s attorney, John Sauer, at a Tuesday morning hearing before the United States Court of Appeals for the District of Columbia Circuit. A panel of three riders heard arguments over whether they should overturn the ruling of a district court judge, Tanya Chutkan, that a former president is not entitled to the immunities of his erstwhile office. Mr. Trump’s position is plain — a president can only be criminally prosecuted if he was first impeached by the House and convicted by the Senate. That condition, he maintains, is the meaning of the Constitution’s Impeachment Judgment Clause, which ordains that the “Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”Mr. Sauer explained that dispensing with the requirement of an impeachment conviction — Mr. Trump was acquitted — would “Open a Pandora’s Box from which this nation might never recover.” He mused that were such a permissive standard adopted, President Obama could “potentially be charged with murder for drone strikes that kill Americans abroad,” a reference to the assassination of Anwar al-Awlaki, slain by a drone in Yemen.The riders, though — Judges Florence Pan, J. Michelle Childs, and Karen Henderson — appeared offer a wall of skepticism of Mr. Sauer’s theory. They pressed him as to whether a president could, sans an impeachment conviction, evade prosecution for selling pardons or military secrets or, in that striking formulation, “order SEAL Team Six to assassinate a political rival.” Mr. Sauer retorted that the Framers “were concerned about politically motivated prosecutions” above all else and posed the possibility that a prosecutor in Texas could prosecute President Biden, after he leaves office, for the disorder at the border. These, Mr. Sauer warns, are the downstream demons summoned when a presidential incumbent prosecutes his political opponent.Mr. Smith’s deputy, James Pierce, told the panel that the “president is not above the law” and that a “former president enjoys no immunity from prosecution.” He pointed out that President Nixon accepted a pardon from President Ford — implicitly acknowledging his legal jeopardy — despite not having been convicted at impeachment. Judge Henderson, though, asked him how to craft an opinion that would dam the floodgates of prosecutions.Mr. Sauer marked the danger of a parsimonious parsing of immunity, conjuring a “frightening future” scarred by “cycles of recriminations that will shake our Republic.” He was pushed, though, on his assertion that presidential action is always outside of the ambit of the courts. In, say, Youngstown Sheet & Tube Co. v. Sawyer, the Nine ruled that President Truman’s seizure of the nation’s steel mills was unconstitutional — though there was no effort to charge Truman with a crime.There has been a previous judicial effort to understand how far the protections of the presidency extend, albeit in a civil context. In Nixon v. Fitzgerald, the justices held that the “President’s absolute immunity extends to all acts within the ‘outer perimeter’ of his duties of office.” Mr. Trump concedes that a president is not protected from prosecution for purely private acts. At the District of Columbia after the hearing, Mr. Trump spoke with reporters at the Waldorf-Astoria hotel, previously the Trump International Hotel Washington, D.C. Mr. Trump shared that “I feel that as a president, you have to have immunity, very simple. I did nothing wrong.”

Trump and Jack Smith Appear in Court as Judges Weigh Whether Presidential Immunity Might Cover Ordering a Political Assassination

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