A three-judge panel for the D.C. Circuit Court of Appeals appeared unanimous in rejecting former President Donald Trump’s argument that presidents have “absolute immunity” from criminal prosecution for any acts taken in office unless they are impeached and convicted, following arguments on Tuesday.
The appeals court sat in judgment over Trump’s appeal to dismiss the four felony charges brought against him by special counsel Jack Smith for his actions leading up to the Jan. 6 insurrection.
The court largely addressed Trump’s two main arguments: presidents have “absolute immunity” from all criminal prosecution for official acts taken in office, and presidents may only ever be prosecuted if first impeached in the House and convicted in the Senate. No president has ever been impeached and convicted.
The appeals panel consisted of two Biden appointees, Judges Florence Pan and Michelle Fields, and one George H.W. Bush appointee, Judge Karen Henderson. All three of the judges appeared skeptical of the arguments made by Trump’s defense lawyer, D. John Sauer.
But the true absurdity of Trump’s argument quickly became clear as Pan forced Sauer to take the former president’s argument to its logical conclusion.
“Could a president who ordered SEAL Team 6 to assassinate a political rival [and is] not impeached, would he be subject to criminal prosecution?” Pan asked Sauer.
Sauer offered a “qualified yes ― if he is impeached and convicted first.”
But, as Pan pointed out, if the president were not convicted in the Senate, then Sauer’s answer is no. She further stated that this logic also applied to a president selling pardons or military secrets, as these could be argued to be official acts.
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This “extraordinarily frightening future” where it would “not [be] a crime” if a president orders the assassination of his political rivals and then resigns to avoid impeachment and conviction should “weigh heavily” on the court’s decision, assistant special counsel James Pearce argued.
Pan also pressed Sauer on the contradiction inherent in the two arguments Trump makes for immunity. If a president can be prosecuted if they are impeached and convicted, then the president does not have absolute immunity, she argued. Therefore, the court should only seek to answer whether the Constitution mandates impeachment and conviction to enable a later prosecution.
Sauer rejected this contradiction by arguing that the requirement of impeachment and conviction for an ex-president’s prosecution is a “very narrow exception.”
Henderson, meanwhile, questioned Sauer’s argument that the president can freely break the law because he is being required by the Constitution to “take care that the laws be faithfully executed.”
“I think it’s paradoxical to say that [Trump’s] constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate criminal laws,” Henderson said.
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In making the argument against Trump’s absolute immunity defense, Pearce noted that common public perception and practice since the Watergate scandal has been that former presidents can be subject to criminal prosecution. Former President Richard Nixon’s acceptance of a pardon for his actions, including directing the CIA to interfere in an FBI investigation, is strong evidence that former presidents have believed that they can be criminally prosecuted, even absent impeachment and conviction, Pearce argued.
Throughout the arguments, Sauer clashed with the judges, repeatedly refusing to answer clearly stated questions. In particular, he refused to concede that this prosecution could be, in any way, legitimate – even if the facts fit the argument he was making. It appeared, at times, that his arguments were aimed less at convincing the judges than at showing strength to his client, who was in attendance.
The Department of Justice has asked the court to issue a ruling within five days of arguments. Trump’s lawyers have reserved the right to appeal any decision to the full appeals court or to the Supreme Court.