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US president could have a rival assassinated and not be criminally prosecuted, Trump’s lawyer argues
Insights from The New York Times, Lawfare, and Just Security
The News
Former president Donald Trump’s lawyer argued that presidential immunity would cover the U.S. president ordering political rivals to be assassinated by SEAL Team Six.
During a hearing at a federal appeals court on Tuesday, Trump’s lead lawyer John Sauer made a sweeping argument for executive immunity, essentially saying that only a president who has been impeached and removed from office by Congress could be criminally prosecuted. Therefore, Sauer argued, the former president should be shielded from criminal prosecution.
One of the judges asked Sauer: “Could a president who ordered SEAL Team 6 to assassinate a political rival, and is not impeached, would he be subject to criminal prosecution?”
Sauer responded: “If he were impeached and convicted first... there is a political process that would have to occur.”
The court is considering an appeal in Trump’s election obstruction case after the trial judge already rejected these same arguments about the scope of presidential immunity.
Assistant special counsel James Pearce urged the panels of judges to reject Trump’s argument. “Never in our nation’s history until this case has a president claimed that immunity from criminal prosecution extends beyond his time in office,” he told the court. All three of the judges expressed skepticism about Trump’s legal argument, repeatedly grilling his lawyer on the immunity claims.
The outcome of the arguments is expected to have major implications for Trump’s 2024 bid.
SIGNALS
Trump hopes to delay election interference trial through immunity appeals process
Trump’s legal team is hoping to delay the trial until after the 2024 election through a protracted appeals process on the immunity issue, The New York Times reported. The Justice Department’s Jack Smith unsuccessfully petitioned for the Supreme Court to intervene in the appeals process in December, arguing that the former president shouldn’t be able to use legal procedures to obstruct a speedy trial. Trump’s criminal trial is currently scheduled for Mar. 4 but could be postponed if there is a rehearing or the case goes to the Supreme Court, which most legal experts believe it will. Legal blog Just Security said that while Trump is likely to lose the appeal given “the weakness” of his immunity argument, it could take as long as until mid-May for the courts to reach that decision.
Trump’s immunity motion expected to set consequential legal precedent on presidential power
Whatever the final ruling is on Trump’s appeal, it will set a legal precedent with wide-ranging consequences for presidential power. Because “few presidents are known to have committed indictable crimes while in office,” and none have ever been charged for one, it will be the first time courts will have to address the question of whether a former president can be criminally prosecuted for crimes committed in office, legal analysts wrote for Lawfare. While most experts agree that a president can face criminal charges, there is “no clear law on the point one way or another.” Even so, Trump’s legal arguments about the extraordinary nature of presidential immunity “challenge a 250-year understanding of the scope of the presidency,” Stephen Collinson wrote for CNN. If the case reaches the Supreme Court and it were to grant Trump’s appeal, the analyst added, it would place “him and anyone else elected president above the law.”
Trump’s best defense for immunity would be to focus on ‘official acts’
While some crimes are clear-cut, it is less obvious if a president should face prosecution for “ordering the assassination of a terrorist, or refusing to prevent illegal crossings of the border,” two legal reporters wrote for the Los Angeles Times. Following this vein of thought, Trump’s best legal argument is to emphasize that he is being prosecuted for “official acts,” they wrote. Indeed, Trump’s lawyer argued that the indictment describes “official conduct” such as Trump trying to install a political ally as attorney general and meetings he held with members of Congress. The lawyer warned that allowing presidents to be prosecuted for “official acts” would open up “a Pandora’s Box” of prosecuting political rivals.
