Trump’s Lawyer Walked Into a Trap
By the end of the argument, everyone knew it.
It was a cold and rainy morning in Washington, D.C.,
yesterday. Five years ago, Donald Trump said that was enough to deter him from visiting Aisne-Marne
American Cemetery, to commemorate the fallen American soldiers—soldiers who
died defending the nation whose Constitution he had sought to abrogate but now
seeks to invoke. But yesterday, he showed up anyway. Appearing in court was
more important to him, because this was about him.
And so at 9:25 a.m., the former president and his entourage
strode into Courtroom 31 of the E. Barrett Prettyman United States Courthouse
on Constitution Avenue, just a few blocks away from the Capitol his supporters
had ransacked three years ago Friday, and took their seats. It took just a few
short minutes for their case to come completely apart.
The wood-paneled walls of the courtroom display large
official portraits of many of the renowned judges who have served on the United
States Court of Appeals for the District of Columbia Circuit, known
colloquially as the D.C. Circuit and long considered to be the second-most
important appellate court in the land. The faces gazing down from the walls
were mostly male, with a couple of exceptions. Near the front on the left
side, Ruth Bader Ginsburg, wearing a trademark jabot,
had one of the better views, directly overlooking the bench, counsel table, and
podium. I envied her vantage point; from her perch, I could have seen the
expressions of all the players, including the defendant. I found it hard not to
wonder what she would have thought of these proceedings.
No doubt she would have approved of the panel of judges who
heard the case: three women, of differing backgrounds and of fine reputations,
each sworn to “administer justice without
respect to persons, and do equal right to the poor and the rich.” The question
these jurists faced in the appeal they heard yesterday—styled United
States of America v. Donald J. Trump, No. 23–3228—came down to whether justice could
be administered to a former president of the United States.
Everyone rose, including Trump, as the women in black robes
entered the courtroom. The court quickly got to work. D. John Sauer, a former solicitor
general of Missouri (appointed by then–state Attorney General Josh Hawley), an
advocate with an exceptionally gravelly voice that runs as fast as any New
Yorker’s, stepped to the podium to speak for Trump.
From the October 2023 issue: The courtroom is a very
unhappy place for Donald Trump
Before he could say anything, the presiding judge, Karen LeCraft Henderson, a George H. W. Bush
appointee who nearly a quarter century ago had taken Ken Starr’s seat on the
court, immediately asked Sauer whether the court had jurisdiction to hear the
appeal. This wasn’t an issue the parties raised—it surfaced in a friend-of-the-court brief—but the judges understandably wanted to
hear what the parties had to say about it.
In a nutshell, the jurisdictional question arose from the
fact that the federal courts strongly disfavor “interlocutory”
appeals—challenges to district-court rulings before the district court finally
decides the whole case. That disfavor can be overcome, on occasion, for appeals
of so-called collateral orders: orders deciding issues that are sufficiently
divorced from the ultimate merits of the case and that might be effectively
unreviewable in a later appeal after a final judgment. In a case called Midland Asphalt Corp. v. United States, the
Supreme Court made clear that the collateral-order exception must be narrowly
construed, particularly in criminal cases. No court has ever addressed
how Midland Asphalt applies to a criminal prosecution of a
former president for acts he committed in office.
Sauer, as expected, argued that the exception does apply,
and that the court could hear the appeal. I say expected because it could be no
other way for his client: If this appeal were dismissed, Trump would not be
able to pursue his claim of immunity from prosecution until after he
is (as I admittedly hope he will be) convicted and sentenced.
The panel member seemingly most interested in the
jurisdictional question was Judge J. Michelle Childs, a Biden appointee who,
before joining the D.C. Circuit, had served for 12 years as a federal district
judge in South Carolina. Midland Asphalt states that
defendants can’t make interlocutory criminal appeals raising issues of immunity
from prosecution unless there’s “an explicit statutory or constitutional
guarantee that trial will not occur.” Childs’s questions focused on the fact
that, whether or not Trump has immunity, the guarantee that he’s relying on
isn’t “explicit”—he argues that it’s inherent in the separation of powers.
Sauer didn’t have much of a response to this line of inquiry, other than to
say, in effect, that presidential immunity claims are special, and that explicit didn’t
really mean “explicit.” He did get a little help, though, from Judge Henderson,
who made the suggestion that Midland Asphalt was itself only a
suggestion from the Supreme Court.
But the jurisdictional back-and-forth was merely a
sideshow; what everyone came to hear was the merits of Trump’s immunity
argument, and the court’s reaction to it. Sauer and the judges soon obliged.
Sauer warned, in effect, that the heavens would fall—ruat caelum, for
fanciers of Latin legal axioms—were his client tried for his crimes. “To
authorize the prosecution of a president for his official acts would open a
Pandora’s box from which this nation may never recover.” He elaborated: “Could
George W. Bush be prosecuted for obstruction of an official proceeding for
allegedly giving false information to Congress to induce the nation to go to
war in Iraq under false pretenses? Could President Obama be potentially charged
with murder for allegedly authorizing drone strikes targeting U.S. citizens located
abroad?”
Sauer never got the chance to answer his own rhetorical
questions, because at this point, the panel’s most incisive and persistent
questioner jumped in. “Can I explore the implications of what you are arguing?”
inquired Judge Florence Y. Pan, a Biden appointee and
longtime federal prosecutor in the nation’s capital who also served on the
Superior Court as well as the United States District Court there. “I understand
your position to be that a president is immune from criminal prosecution for any official
act, even if that action is taken for an unlawful or unconstitutional purpose.
Is that correct?”
Sauer’s answer: Yes, but with an exception. The exception
being that, if a president is impeached by the House of Representatives and
convicted by the Senate, then and only then can he be prosecuted in a criminal
court, after he leaves office, for the offenses for which the Senate had
convicted him.
This was not a great answer. As I wrote a couple of days ago about Trump’s
Supreme Court certiorari petition in his Colorado ballot-disqualification case,
appellate courts usually don’t find convincing a litigant’s efforts to combine
two weak points in order to make a stronger one. Usually, the weakness in one
bad argument bleeds into the other, and vice versa—producing a sum that is even
less than its parts. And that’s what happened here.
As Judge Pan’s question pointed out, Trump’s main argument
on this appeal is that presidents can’t be prosecuted for their official acts.
That argument is based on a line of civil cases establishing
that presidents can’t be held liable via monetary damages for their official
actions—more specifically, as the Supreme Court held in 1981 in Nixon v. Fitzgerald, there is “absolute
Presidential immunity from damages liability for acts within the ‘outer
perimeter’ of his official responsibility.”
I know a fair bit about this line of precedent, because (in
what seems now to be another life), I ghostwrote the Supreme Court
brief for Paula Jones that defeated President Bill Clinton’s claim of immunity,
9–0, in Clinton v. Jones in 1997. Suffice it to say that the
rationale behind Fitzgerald encompasses only civil liability
because it is grounded in the fear that, if presidents could be hauled into
civil court by the countless people affected by their official acts, then the
leader of the free world might fear doing his or her job. And even if this
protection from civil-damages liability could be extended into the criminal
realm, it surely oughtn’t apply here, where Trump was not only acting beyond
the “outer perimeter” of his official responsibility, but utterly abjuring that
official responsibility.
Still, Trump’s immunity argument is at least an argument:
Not a good one, not a winner, but not completely and totally ridiculous. I
can’t say it wasn’t worth the old college try. The same cannot be said about
the other major contention Trump has urged on this appeal, the argument that
Sauer took to conflating with the immunity argument in response to Judge Pan’s
questioning.
That second argument relies on what’s called the
Constitution’s impeachment-judgment clause, in Article I, Section 3. That
provision, in its entirety, says (with the relevant part italicized):
Judgment in Cases of Impeachment shall not extend further than to removal
from Office, and disqualification to hold and enjoy any Office of honor, Trust
or Profit under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.
By its express terms, all this language does is make sure
everyone understands that double-jeopardy protections don’t apply when a
federal public official is impeached, convicted, and removed from office. The
clause makes clear that the official may still go to jail—that
he remains “subject to Indictment, Trial, Judgment and
Punishment” even after he is removed from his job.
But Trump’s lawyers contend that this text says something
it absolutely does not say: that, if a public official, namely
the president, is not impeached and removed by Congress, then
he cannot be prosecuted under criminal law. This is fallacious
reasoning by “negative inference,” as Judge Childs dismissively put it, and
it’s absurd for any number of reasons even apart from the plain meaning of the
English language the clause uses. For one thing, a wealth of historical
evidence contradicts the argument. As Justice Joseph Story explained in
his Commentaries on the Constitution of the United States,
even after an acquittal at an impeachment trial, the accused should still be
liable to face a criminal trial, for “if no such second trial could be had,
then the grossest official offenders might escape without any substantial
punishment, even for crimes.”
David A. Graham: The cases against Trump: a guide
For another, a public official might be acquitted in the
Senate for reasons other than the merits of the impeachment charges against
him. In fact, that’s exactly what happened at Trump’s second impeachment trial.
As Special Counsel Jack Smith noted in his D.C. Circuit brief, “At least 31 of the 43 Senators who voted
to acquit the defendant”—Trump—“explained that their decision to do so rested
in whole or in part on their agreement with the defendant’s argument that the
Senate lacked jurisdiction to try him because he was no longer in office.”
Worse yet, as Henderson and Pan later pointed out during the argument,
Trump’s own lawyers conceded to the Senate in February
2021 that, even if Trump were not convicted on the impeachment charges, he
could still be criminally charged. Oops.
Icould go on about the impeachment-judgment clause, and the
members of the panel certainly did, but the bottom line is that Trump’s
argument about that clause was frivolous, and not worth making. In fact, Sauer,
by extending that argument to make a limited concession to Pan’s questioning
about whether he was arguing that presidents could never be criminally
prosecuted—remember, he said that this could happen if the
president is first convicted by the Senate—unwittingly set a nasty trap for
himself.
A trap that Pan’s brilliant interrogation shut tight.
The judge wasted no time in drilling into the implications
and inconsistencies in Sauer’s position. Pan asked, incredulously, “Could a
president order SEAL Team Six to assassinate a political rival? That’s an
official act—an order to SEAL Team Six.”
To which Sauer replied, unresponsively, that a president
would quickly be impeached and removed for that. This was followed by more
unresponsive words from Sauer.
Pan wanted an answer—to the question she had
asked.
pan: I asked you a
yes-or-no question. Could a president who ordered SEAL Team Six to assassinate
a political rival [and] who was not impeached, would he be subject to criminal
prosecution?
sauer: If he were
impeached and convicted first—
pan: So your answer
is no?
sauer: My answer is a
qualified yes.
The filibustering then continued, with Sauer rambling on
about Department of Justice Office of Legal Counsel memorandums, James Madison,
the abuse of the criminal process. Many words.
Pan interrupted again: “I asked you a series of
hypotheticals about criminal actions that could be taken by a president and
could be considered official acts and have asked you: Would such a president be
subject to criminal prosecution if he’s not impeached and convicted? And your
answer, your yes-or-no answer, is no?”
Sauer, realizing he was being cornered somehow, tried to
avoid the door closing behind him. But Pan was having none of it. Like the
experienced prosecutor she is, she insisted on an answer, and wasn’t going to
let go. (If this judging thing doesn’t work out for her, I’d love to see her
host Meet the Press someday.)
She and Sauer went around and around on this a few more
times. But the damage was done, and Pan’s point was devastatingly made—in
essence, that Sauer was arguing out of both sides of his mouth. On the one
hand, Sauer argued that the Constitution gave the president absolute immunity
for his official acts, lest we have political prosecutions of former
presidents. On the other hand, if the United States Congress—a political body
if ever there was one—effectively gives permission (by impeaching and convicting),
well, then, yes, a president can be prosecuted, and—wait for
it—he’s not absolutely immune.
It’s hard to know whether the criminal defendant, sitting
at the counsel table, could understand enough of the dialogue to know that his
immunity argument had completely collapsed, right then and there. But it had.
Sometimes during appellate arguments, there’s a moment when
you know exactly how the court will come out. And this was one. I once had such
a moment, fortunately in my favor. My one and only argument before the U.S.
Supreme Court was in a case about whether federal securities laws could impose
liability for securities transactions occurring abroad. I was arguing in the
negative, on behalf of an Australian bank. My opponent was up first, arguing in
favor of applying American law. I figured I had the conservative justices, but
I was a bit less sure about the more liberal justices.
After some preliminary questions to my adversary about
jurisdiction, the Court got to the merits. I’ll never forget it. Justice
Ginsburg asked a question that was more like a
statement: “This case is Australian plaintiff, Australian defendant, shares
purchased in Australia. It has ‘Australia’ written all over it.” I don’t know
whether I heard the rest of her question, or my opponent’s answer. But I knew
right then and there, before having uttered a word to the Court, that my client
had won.
As for the special counsel on Tuesday morning, he, too—like
everyone else in the courtroom—knew from Judge Pan’s withering questioning and
Sauer’s evasive responses to her that Trump is going to lose. The only question
is how quickly it will happen. I have little doubt it will be soon.
George T. Conway III is an attorney and a
contributor to The Atlantic.
A Thought Experiment About SEAL
Team 6 Goes Terribly, Terribly Wrong
Pressed in court, Trump’s lawyers made an argument that
would destroy nearly all limitations on presidential power.
Donald Trump has always displayed authoritarian impulses,
but the Trump who is running for president now is not the same as the Trump who ran in 2016. He is
more ruthless, more dangerous, and more authoritarian than before. And today in
a federal court in Washington, D.C., with Trump present, his attorneys offered
perhaps the boldest assertion of power that any major American candidate has
ever made.
In a hearing before the D.C. Circuit Court, the former
president’s lawyers argued that he should be immune from criminal prosecution
for his role in the attempt to steal the 2020 presidential election. This
argument has an obvious flaw: It implies that the president is above the law.
Such a blunt rejection of the Constitution and the basic concept of American
democracy is too much even for Trump to assert—publicly, at least—so his
lawyers have proposed a theory. They say that he can’t be criminally prosecuted
unless he is first impeached and convicted by Congress.
This argument is no less dangerous, as a hypothetical asked
in court demonstrated in chilling terms. Judge Florence Pan asked Trump’s
attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate
a political rival” could be criminally prosecuted. Sauer tried to hem and haw
his way through an answer but ultimately stated that such a president couldn’t
be prosecuted unless he was first impeached, convicted, and removed by
Congress.
From the January/February 2024 issue: Trump isn’t bluffing
“But if he weren’t, there would be no criminal prosecution,
no criminal liability for that?” Pan pressed. Sauer had no choice but to agree,
because acknowledging any exceptions would have blown a hole in his argument.
Eight years ago, in January 2016, Trump marveled at his supporters’ devotion. “I
could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t
lose any voters, okay?” he said at a rally in Iowa. “It’s, like, incredible.”
The statement was astonishing, but it could also have been interpreted as
something of a joke. In retrospect, it was an early step in his realization
that few bounds might exist on his behavior.
His lawyers’ comments now are a logical, if scary,
extension of that remark. Back then, Trump was musing about commonplace murder.
Now the topic is the assassination of a political rival, using the force of the
U.S. military. But both proceed from the assumption of unwavering support from
Trump’s backers.
The Framers of the Constitution may well have assumed that
any president would be impeached and convicted quickly if he (for example)
ordered an act of political murder. That assumption no longer holds, though.
The very criminal case in question concerns an exceptional circumstance:
Trump’s attempt to steal the election, as alleged by Special Counsel Jack Smith
in a lengthy indictment. The House did impeach Trump, and the Senate tried him,
but it failed to win the two-thirds majority needed for a conviction.
In effect, Trump has realized that, just as none of his
voters would desert him over murdering a man on Fifth Avenue, nothing he could
do would be so bad that congressional Republicans would abandon him. He doesn’t
need a majority, either. Under the argument his lawyers made in court today,
all Trump needs is 34 Republicans who will vote not to convict, and that’s
sufficient to guarantee he can act with impunity. Sauer told Pan, “In these
exceptional cases, you’d expect a speedy impeachment and conviction.” But who
would really expect that anymore? Not Trump, and not any other prudent observer
either.
David A. Graham: Trump says he’ll be a dictator on “day
one”
What lawyers say in court is not the same as what
politicians say or will do in office, but no normal politician would allow such
an argument to be made on his behalf, especially while sitting in the
courtroom. Trump did because his mentality is victory at all costs—winning the
present legal case, but also anything else. Trump has already made clear that
he wishes to punish his political opponents, and
once he discovers the possibility of some power, he is seldom able to resist
trying it. Today’s legal argument could very well be next year’s exercise of
presidential power.