John Sauer Says Joe Biden May Assassinate His Client

In the hearing over whether Trump is entitled to absolute immunity, Trump’s attorney, John Sauer — assisted by some hypotheticals from Judge Florence Pan — backed himself into the corner demanded by his claims.

Joe Biden could order Seal Team Six to assassinate Donald Trump, then quit immediately, before Congress could impeach him, and there would be absolutely no way to hold him accountable for killing his opponent.

Okay then.

James Pearce, in his response, asked “what kind of world are we living in” when Sauer would argue that there would be a way for the President to assassinate his opponent, then resign, or sell pardons, resign, and get away with it.

That’s the world Trump wants, his attorney just argued.

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148 replies
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  2. harpie says:

    I started following the proceedings at the last post:

    https://www.emptywheel.net/2024/01/08/weekly-nicole-sandler-podcast-appearance/#comment-1032484

    The last comment there:
    Marcy 3:14 PM UTC:

    Pearce: THIS CASE, in which the defendant is accused of conspiring to overturn result of election, is not the place to endorse the idea of some novel presidential immunity.

    Pan: Why aren’t you asking us to dismiss this bc it is interlocutory.

    Pearce: Your goal is to do justice, to get the law right.

    WOW.

    SM 3:14 PM UTC

    Special Counsel attorney begins arguments… and says this case… in which a former President is charged with plotting to overturn an election.. is not a case in which to apply and honor “some novel” argument of immunity

    Attorney James Pearce is arguing for the Special Counsel’s office

    He got 1-minute into his argument, when appeals court judges began to interject with questions

    Special Counsel’s office attorney says “Our interests are twofold. One.. is doing justice. The second is to move promptly to satisfy.. the public and the defendants interests..” by moving forward to trial

    • harpie says:

      https://nitter.net/emptywheel/status/1744741342369267919
      Jan 9, 2024 · 3:22 PM UTC

      Henderson: How do we stop the floodgates? OLC worried about necessarily political prosecutions.

      Pearce: There is a political process which is impeachment. There is a legal process that is not political.

      Pearce: The notion that we’re going to see a floodgate. The fact that this resulted in charge doesn’t suggest we’re going to see a floodgate, it reflects unprecedented actions we see here.

      Pearce says a drone strike in which civilians were killed–something both Obama and Trump did, though he didn’t say that–might be where you’d see immunity.

      Pearce: I think the court could write an opinion that says, based on allegations that we accept as true here, we don’t have to reach question of immunity

      Pearce: What kind of world are we living in where, as I take my friend to suggest, if a President orders Seal Team Six to assassinate his opponent, resigns, immune. sells pardon, resigns, immune.

      https://nitter.net/MacFarlaneNews/status/1744741866170671420
      Jan 9, 2024 · 3:24 PM UTC

      Special Counsel’s office: “The fact that this investigation (resulted in charges), doesn’t mean we’ll see a sea change of … tit for tat” of political prosecutions in the future.

      Special Counsel emphasizes that what Trump is accused of …. *has never been attempted before*

      Special Counsel attorney argues that if a future President attempts what Trump attempted after 2020 election loss.. “it’d be scary” if there wasn’t criminal accountability

      Special Counsel attorney (James Pearce) argues “What kind of world are living in…. if a President orders his seal team to assassinate his political rival, then resigns before impeachment?” And therefore can’t be criminal charged

      • Spencer Dawkins says:

        I think it’s fair to suppose that Republicans are no more or less likely to prosecute Joe Biden to achieve political ends, no matter what the appeals court rules. I’m old enough to remember Republicans vowing to impeach Biden before he took office, and I assume that they would do the same thing with criminal prosecution.

    • SonofaWW2Marine says:

      Fwiw, that one-minute mark feels pretty standard. I argued a lot of appeals, & saw a lot more, usually while sitting in court waiting my turn to argue. If appellees’ lawyers got more than a sentence in between “May it please the Court” and the panel’s first question, either (1) they were already addressing an issue the judges wanted to hear about, or (2) the judges had already made up their minds.

    • harpie says:

      Marcy 3:30 PM UTC

      Pearce says Blassingame would change the nature of official acts in the indictment, but not how we approach criminal investigations.

      He’s back to getting people not to testify again.

      Childs notes that intent is part of mens rea.

      Pearce: Yes, and that’s the problem.

      Pearce TRYING HARD to avoid any limit coming from Blassingame.

      There’s nothing shrinking about this argument.

    • harpie says:

      [comment in moderation before this]

      Marcy 3:34 PM UTC:

      Pearce notes there’s enough to affirm under Blassingame. Notes that it would create some evidentiary challeges.

      “This is the immunity appeal.”

      Then immunity is lost, he implies.

      Pan now saying that if Sauer’s impeachment first argument is wrong, he loses.

      Pearce “That is wrong for textual, historical, and a host of practical reasons.”

      If a President assassinates and sells pardons and isn’t impeached, there is no accountability.

      Pearce seems like he feel he has the win and is bulldozing for a bigger win.

      Again, I can’t WAIT for the reports of how Trump is taking this — his attorney arguing that Biden can assassinate him.

      Pearce DOES NOT end with a request for anything re stay.

    • harpie says:

      Marcy 3:39 PM UTC:

      LOLOLOLOL.

      Now Sauer, having argued that Nixon’s were private acts, says that the fact that Trump was not charged for anything after he left office that they were official acts.

    • harpie says:

      Marcy 3:42 PM UTC

      Pan: So I just want to confirm. If President Trump HAD BEEN convicted, then this prosecution would be entirely proper.

      Sauer: For the same or similar conduct. There would be many other issues with this prosecution.

      Pan has so little patience for men who filibuster her.

      Sauer is trying REALLY hard not to concede Pan’s point–again, I wonder how Trump is responding to this.

      Now Pan has gotten him to concede that under Sauer’s theory, POTUS can be prosecuted for official acts.

      The OTHER brilliant thing about Sauer’s argument that Biden can assassinate his client is that BY NOT DOING SO, Biden is disproving all Sauer’s bullshit claims about politicization.

      GAWD that was fun.

      • Scott_in_MI says:

        This line of reasoning also hands Biden a huge hammer to wield on the campaign trail, along the lines of: “So, let’s start with the fact that [doing X] would be morally wrong, which doesn’t seem to be a point that troubles Donald Trump very much….”

      • HikaakiH says:

        Hmmm. So Sauer argues on Trump’s behalf that US citizen’s lives are lived only by the forbearance of their President from killing them, which is his legal right since there is no legal mechanism to restrain him from so doing, with the caveat that if Congress considers impeachment, the President can resign and walk away harmless. This is a modern reworking of the Divine Right of Kings Presidents.

        • P J Evans says:

          I expect that most people’s response to that one would be a very loud “hell no!!” We aren’t owned by the president or anyone else.

    • harpie says:

      SM: 3:38 PM UTC

      Special Counsel attorney wraps up. No further questions for him from judges

      Trump attorney, Sauer, returns to podium

      Trump’s lawyer begins 5-minutes of response by arguing “presidential immunity” would NOT put the President “above the law”

      He’s again arguing there’s a difference between “official” and personal acts. Sauer says all allegations in indictment occurred *while* Trump was in office

      There it is: As frequently made by Trump lawyers in public arguments…
      Trump’s lawyer tells judges that Trump “is leading in every poll”
      The Trump attorney has referenced President Biden’s handling of the border. And former President’s Bill Clinton’s pardons. And he’s argued Trump is “leading in every poll”

      Trump’s lawyer is making his arguments to judges while Trump is in the room

      Judge Pan returns to her key line of questioning.. asking Trump’s lawyer if the prosecution would be permissible if Trump were convicted by Senate at impeachment trial

      Sauer is not answering “yes” or “no”

      Sauer says “a prosecution” but not “this prosecution” could be brought if Trump were convicted at impeachment trial

      Judge Pan interjects again: “Let me try this one more time”, re-asks question re: whether Trump could be charged if convicted at impeachment

      Sauer: “potentially”

      Sauer wraps. Judges stand up.

      This is over. 1-hour, 16 minutes [3:46 PM UTC]

      Judges wrapped up hearing with a brief “Thank you”

      Attendees, including Jack Smith, stand up.

      This was efficient. Shorter than the appeals court’s Trump gag order hearing last year

      Trump is expected to depart via motorcade from underground garage. The weather outside courthouse is …. Bleak. Gusty winds. Heavy rains. Not a day for a media avail outside
      [< harpie: LOLLOLLOLLOL!]

      • Ana_05AUG2022_1309h says:

        So officially Trump now agrees there’s no double jeopardy in having an impeachment trial followed by a criminal trial.

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            @Rayne, how can I find out what handle I used when replying a long time ago to a thread?

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      • RipNoLonger says:

        So Sauer is saying that Trump was “in office” during the impeachment proceedings. But they also argue that Trump is not an “office holder” and is not subject to laws. Deformed pretzels.

        • Rayne says:

          This is all so very circumlocutory when Sauer (and Trump) could simply go full Nixon and say, “Well, when the president does it, that means that it is not illegal.”

          • RipNoLonger says:

            “Where’s my Roy Cohn?” – Bill Barr obviously didn’t have the chops (or he has other ideas in mind.)

            • Ginevra diBenci says:

              I think Barr came to realize Trump was far too cracked a vessel for his (Barr’s) visions of a unitary executive.

  3. Badger Robert says:

    Immunity would not be used to get away with murder. But it might be employed to create temporary majorities for the President’s party to pass laws or remove justices. If the President = a king, Madison and Washington would have been surprised to discover that.

    • JonathanW says:

      I’m not sure I agree that it wouldn’t eventually lead to indirect assassination of political opponents. Like, for example, a one-time ally helping you fight a war who tries a coup, fails, and then, oops, happens to die in a plane crash. Scenarios like that seem to me to be more likely if there is immunity.

      • lastoneawake says:

        Trump saw Pence as a new political enemy, and VERY MUCH tried to have him “indirectly” assassinated.

    • earlofhuntingdon says:

      The argument is that being immune from prosecution for murder is a natural and logical consequence of ruling for Trump’s version of presidential immunity. If you allow it, someone will eventually do it.

      Does anyone think that those who succeed Trump will be less extreme? Snowballs tumbling down hill do not course correct themselves: they grow bigger and roll faster.

      • Ginevra diBenci says:

        Re: your snowballs, earl. They only roll faster without friction. We must continue to supply that friction.

  4. ColdFusion says:

    I mean, yeah. I don’t doubt that Sauer’s client would absolutely *love* to have that ability, and he knows no rational human (e.g., democrats) would dare to do it. Now, it would be wrapped in a patriotic wrapper, something like resisting arrest for a made-up crime, but even if not there could be no consequences.

  5. James_19JAN2019_1106h says:

    The obvious legal argument Sauer should have used is that Seal Team 6 has sworn an oath to uphold the Constitution and wouldn’t do anything illegal even if ordered (I know this isn’t true, but probably would have been a better argument).

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    • c-i-v-i-l says:

      Doubtful that he’d say that, given that he was arguing that the Take Care clause doesn’t impose a requirement on the President not to commit crimes.

    • emptywheel says:

      Chuck Rosenberg IS a legal expert. And usually offers a more sound opinion than a lot of other TV lawyers.

      • earlofhuntingdon says:

        Apart from doing his day job of real lawyering? He was probably waiting for your sarcastic invitation. Not.

        • P’villain says:

          Aside from a dust-up about whether DOJ has proceeded with all deliberate speed in these prosecutions, it’s been refreshingly civil around here lately.

          • earlofhuntingdon says:

            You do know that, in the Navy, deliberate speed is an intentional contradiction in terms.

            • earlofhuntingdon says:

              Orders are best when unequivocal, but deliberate more often pairs with slow, as speedy does with fast.

              The command waffles with what it asks a subordinate to do, but seems to boil down to get the job done, but don’t fuck up and embarrass the senior officer who gave it.

              • Raven Eye says:

                Yeah…I always took it to mean get there as fast as you can, but don’t break the plant, don’t hazard the vessel, nor anyone else. (This was 46 year-old ship and breaking the plant was a possibility.)

        • punaise says:

          There was some kind of hiatus-inducing dust-up at the highest levels here re CO DQ case I believe. It’s all Jonathan Chait’s fault.

            • timbozone says:

              Becoming a better person, maintaining standards, etc, isn’t easy, even for the best of us. We need counterpoints to help us think more deeply about our own assumptions, about our own behavior, etc, etc. The problem is when there is little progress and possibly even some regression, the reasons for which may be due to causes both known and unknowning. I don’t pretend to understand what has happened to bmaz but we can’t all be the perfect person for everyone all the time.

            • EW Moderation Team says:

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              • OneFineMonster says:

                My God. How do you not see how deeply and fundamentally these issues are related? White supremacy and patriarchy and the tolerance of horrible behavior. That is what all of this is about. That is fundamental to Trump, fascism and the nightmare we are living through today.

                … I can’t …I’m just shaking my head here in disbelief.

                And the response is to remove the comments when the very behavior we are calling out was allowed to go on for years?

                That is… mighty white of you.

                Lord. Do people ever, ever learn?

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  6. Fran of the North says:

    I wonder how much it galled Trump that his three judges were women. Cue the truth posts in 3…2…1…

    • Stephen Calhoun says:

      During the proceeding comments from the MAGA side on X quickly shifted to: ‘the panel is in Biden’s pocket,’ ‘the fix is in,’ ‘liberal judges can’t be trusted,’ and sundry eruptions of ongoing counter-rule-of-law programming.

  7. Ana_05AUG2022_1309h says:

    Funny they did not mention the hypothetical of a sitting president committing a crime that’s only discovered after (s)he leaves office. What would Sauer reply to that?

    [FYI — See note on your previous comment at 11:11 a.m. ET. /~Rayne]

    • emptywheel says:

      There was a bit of mention of that at the end–I think from Judge Childs. It didn’t get very far but I think everyone was pretty much decided anyway.

    • Peterr says:

      There can be a split.

      The only effect of a split would be on whether SCOTUS might accept an appeal. A well-crafted dissent might give SCOTUS something to chew on that a unanimous decision would not.

        • timbozone says:

          Hopefully the appeals court ruling will be that Chutkan may proceed with the case. Then an appeal would require the Supreme Court to order a stay or just let things proceed while they think about accepting the appeal. But, we shall see what we shall see when it comes to the ruling of the appeals panel here.

    • earlofhuntingdon says:

      A simple majority is all that’s required. But a unanimous decision would be more persuasive and leave less room for appeal. I think it’s unlikely that the DC Circuit would agree to rehear en banc, a discretionary decision, any likely decision from this trio. The Supremes are also unlikely to grant cert. before a verdict at trial.

  8. Yankee in TX says:

    All of this talk of assassinating Trump is silly. Don’t you know that you can’t kill a man who was born to hang?

  9. Steve in Manhattan says:

    President Harris? Biden free to retire on his record in Delaware? You have to admit that this has a certain appeal to it.

      • likeagodcow says:

        I think the idea is that if immunity is absolute, Biden has arranged to assassinate Trump and then resigned before he could be impeached, so he gets away with murder and he gets to go ahead and retire at 81 and we still have a Democratic President?

        • timbozone says:

          It’s always better if the original poster explains themselves rather than relying on the tea leaves in one’s own cup. That having been said, perhaps they appreciate your effort upon their behalf?

  10. WilliamOckham says:

    We should all be glad that Trump is such a narcissist that he won’t let his lawyers make a more effective case because his argument isn’t all that far from the consensus opinion of our political elites. Most of the political establishment is on record that as long as the President uses the magic words (“national security”) and the law-breaking happens primarily outside U.S. borders, the President is above the law.

    I remain astounded that Trump never cast his insurrection as a national security response to hostile foreign powers trying to install Biden as POTUS. I think he could have brought a lot more of the establishment along with him in the coup. I’ve tried to avoid saying this out loud before his team was locked into the obviously terrible implications of the overly expansive view.

    Indeed, I’m hopeful now that we can start pushing back against the idea that U.S. Presidents can unilaterally without court review assassinate U.S. citizens, here or overseas.

    • HikaakiH says:

      I think the reply below from RitaRita at 11:46 am is likely a reply to you about why foreign interference wasn’t more heavily weighted in Trump’s election conspiracies.

    • Harry Eagar says:

      Jeepers. somebody with an even lower opinion of the foreign policy establishment than mine. I didn’t think that possible. Well-played, sir!

  11. Badger Robert says:

    What kind of world would it be? Instead of Napoleon crowning himself, Sauer satisfied his client by proposing that the court system award Trump the equivalent of a crown. This court of appeals panel is unlikely to go along with the suggestion. The USSC may reach a different result.
    I doubt that even the King of England had that kind power after the reformation.

    • John Paul Jones says:

      The kings of England did indeed have that power until at least the time of Charles I and the (English) Civil War. Charles was tried and convicted for the crime of making war on his own people. Geoffrey Robertson (The Tyrannicide Brief) argues that

      “the King’s trial may now be seen as the earliest precedent for trials of modern heads of state – political and military leaders like Pinochet and Milosevic who attempt (just like Charles I) to plead sovereign immunity when arraigned for killing their own people. [John] Cooke’s case against the king was the first modern legal argument against tyranny – based … on a universal right to punish a tyrant who denies democracy and civil and religious liberty to his people.” (p.3)

      A fascinating book. Sauer’s arguments essentially replicate those of Charles’ lawyers, denying that the Court had any jurisdiction over his actions, be they never so base.

    • GV-San-Ya says:

      “ I doubt that even the King of England had that kind power after the reformation.”

      Badger, do you mean “restoration”?

  12. PJB2point0 says:

    I am sure this has been explicated previously so I apologize in advance but should the DC Circuit rule either to affirm Chutkin or that the appeal is premature, what is the effect of the stay order? Can the trial proceed on March 5 as scheduled?

    • earlofhuntingdon says:

      The stay is lifted and trial proceeds, absent the Supremes accepting cert., which would ordinarily reinstitute a stay of lower court proceedings.

      • PJB2point0 says:

        Thanks. Related question: what is the likelihood the Circuit Court issues its own temporary stay pending Trump request for en banc review?

        • Scott_in_MI says:

          There is, as I understand it, a window of time following the issuance of the opinion before the mandate returns to the trial court, in order to allow for further appeal filings. SC Smith has requested the DC Circuit to make that window small in order to expedite proceedings.

    • Peterr says:

      Trump may try to appeal to SCOTUS, who would take time to consider whether to grant cert. That would add time, just to give the parties time to file briefs on whether to accept the case, and then more time for SCOTUS to decide whether or not to hear the case. If they accept the case, then there’s even more time for that.

      But suppose SCOTUS declines the request, and it goes back to Chutkin. I would imagine that Team Trump would immediately ask that the March 5 date be pushed back, because they had to spend so much time and energy on the immunity appeal that they are now behind in getting ready for the actual case. Chutkin, to protect herself with an eventual appeal, might decide a brief delay would be better than taking the chance that an appeals court would overturn a guilty verdict because she pushed the timeline in an inappropriate way that impaired the defendant’s right to a fair trial.

      • Scott_in_MI says:

        I have no doubt that Trump will ask the DC Circuit for an en banc rehearing first – even if he’s unlikely to get it, going through the motions eats up more time, which is the ultimate point of this exercise.

      • Harry Eagar says:

        I am sure you are right, but Smith just reported to Cannon that trump has provided no discovery in the documents trial. I don’t know what a lawyer could make of that, but if my kid tried to get a postponement and had neglected his chores so flagrantly, the Court of Dad would not be amused.

        • earlofhuntingdon says:

          Depends on whether and when Trump was supposed to provide the discovery that Smith says he hasn’t, and whether any schedule for that was suspended pending further word from Cannon, which she has infamously not issued.

  13. bawiggans says:

    The tit-for-tat prosecution scenario assumes that both parties have sunken to the level of the current Republican party. A government that engages in politically motivated prosecutions of former presidents, having been empowered by a ruling in this case that ex-presidents are not immune, would be, by definition, post-democratic. Trump is trying to convince voters that this is already the case, that his own prosecution is evidence of it, and he is trying to maneuver the courts he has stocked and stacked with FedSoc-approved judges into validating that notion. The problem with this for the FedSoc is that its grand victory in getting effective control of saying what the law is will be of the pyrrhic variety in a society that stops even pretending that the law matters.

    • HikaakiH says:

      The problem with this for the FedSoc is that its grand victory in getting effective control of saying what the law is will be of the pyrrhic variety in a society that stops even pretending that the law matters.

      I think you’ve made a good point. When an executive reigns supreme, the judiciary become mere functionaries to implement the diktats.

      • bawiggans says:

        Trump, the agent of the FedSoc’s elevation as a component of the Republican party’s means to the institution of permanent, minority rule has an agenda that will eventually compel the judiciary’s complete subservience or, barring that, being rendered surplus to requirement.

        • Nessnessess says:

          Indeed, the FedSoc (et al) have harnessed Trump as the accidental agent of their takeover — predating the 2020 coup. They have continued to ride him most useful-idiotically. At what point might they decide he is no longer worth maintaining. Does that point exist? Trump won’t last forever.

          • RipNoLonger says:

            Guessing trump will dissolve into a pool of slime when his good Catholic FedSoc gets someone to do an exorcism on him.

            Not sure how the protestant evangelicals will feel about having their savior made even more disgusting.

          • bawiggans says:

            More likely the other way round. Getting to say what the law is (based on FedSoc’s Opus Dei values) only has meaning if the rule of that law prevails. Trump and his merry band of fascists don’t need no stinkin’ laws. Leonard and Company will be invited to pound sand if their jurisprudence dares to stand between Trump and his insatiable need for money, power and dominance.

          • timbozone says:

            Like the NRA, it really depends on how deeply corrupt the Federalist Society has become and how far its power reaches.

            • Ginevra diBenci says:

              Right now, much, much farther than the NRA’s ever has. How many SCOTUS justices did Wayne LaPierre plant on the court?

              • Rayne says:

                Every one nominated by a GOP president who was approved by GOP Senators who received NRA money. After 2010-2012, NRA’s money to Democrats dwindled to nothing.

                How many were appointed by Russian dark money? Every one nominated by a GOP president who was approved by GOP senators who received NRA money after 2010 Citizens United when Russia began to flood the NRA with cash.

                That’s Gorsuch, Kavanaugh, Coney Barrett.

                • Ginevra diBenci says:

                  You’re right, Rayne. But the “dark money” stream diverted its flow from the NRA (perhaps sensing weakness under LaPierre) years ago, and channeled itself more directly via Leonard Leo into Fed Soc and related entities, with much more direct emphasis on SCOTUS as a target.

                    • Ginevra diBenci says:

                      Thanks. I love that site! I don’t know which surprises me more, that NRA seems to have given up completely on Dems or that the sums seem so paltry so far. Maybe I’m missing a thing or many?

                    • Rayne says:

                      Or that Dems have finally evolved to the point where they’re willing to deal with gun control.

                      Or the NRA truly was wholly bought by foreign interests which believe that buying the GOP is the best option for increasing instability in the U.S.

                      Hard not to say the NRA is really an adjunct of the GOP when less than 3% of its PAC spending goes to any Democrats. And we know the GOP is owned by both Russia and Middle Eastern oil countries.

  14. RitaRita says:

    Trump and his allies started harping on an election rigged by Democrats, people of color, and “illegals” three months before the election. The Trump backers and militia would be more amenable to fighting a domestic threat than a foreign threat. And the Pentagon, CIA, etc would not be amenable to supporting the idea of a foreign security threat. They did try and introduce the possibility of Chinese or Venezuelan tampering.

    • earthworm says:

      not to contradict ritarita, but wasn’t it the case that trump started seeding the soil, as it were …. saying there was “no way he could lose election” unless there was fraud, far earlier?

  15. harpie says:

    re: Pan to Sauer: “I asked you a yes or no question”, [Marcy at this comment]:

    https://www.emptywheel.net/2024/01/08/weekly-nicole-sandler-podcast-appearance/#comment-1032485

    There is an extended VIDEO clip here:

    https://nitter.net/mkraju/status/1744734195199721593
    9:53 AM · Jan 9, 2024

    Judge: “I asked you a yes or no question. Could a president who ordered S.E.A.L. Team 6 to assassinate a political rival (and is) not impeached, would he be subject to criminal prosecution?”

    Trump attorney says “qualified yes — if he is impeached and convicted first.” [VIDEO]

    • earlofhuntingdon says:

      Trump’s argument means that Congress, via the political process of impeachent, controls the executive branch’s faithful execution of the criminal law and prosecutorial discretion. It’s absurd on its face and is likely to be rejected. Doesn’t mean Trump won’t ultimately win; it means the Supremes will pick another hill to die on for Trump.

      • Fran of the North says:

        Given the inability of Congress to agree to almost anything, if Trump’s argument is accepted, there is effective no check or balance on the POTUS.

        • earlofhuntingdon says:

          Exactly the point of Trump’s argument. Heads he wins, tails the rule of law loses. It’s fits Trump’s (and now the GOP’s) version of fairness, because he can’t lose.

  16. Orestes Secundus says:

    Is it even remotely realistic, that the Appeals Court could conclude that yes, Trump can be prosecuted for private, outside the duties of the office, crimes – and now we’ll kick this back down to the district court to discern which of these indictments constitute private crimes and which ones constituted official crimes?

    Didn’t Judge Henderson question something along that line of reasoning?

    It would seem to me that Team Trump would jump on that for a delay much like the special master fiasco.

    • earlofhuntingdon says:

      I think the panel will follow Chutkan’s ruling and tell him that whatever the reach of his immunity, it doesn’t apply here, and send the case back to the trial court. I don’t think the full court will rehear the case en banc. There may be few weeks delay, but nothing like what Trump will ask for.

      The Supremes are unlikely to accept cert., unless the appellate court’s ruling is off the wall. The implications of accepting Trump’s claims of immunity are extreme, even for this Supreme Court. Yes, that subjects Trump to the rigors of a criminal trial, just as if he were a mere mortal, but the Supremes can accept one of Trump’s inevitable appeals and upset any verdict they disagree with.

  17. Fenix Rising says:

    “Joe Biden could order Seal Team Six to assassinate Donald Trump, then quit immediately, before Congress could impeach him, and there would be absolutely no way to hold him accountable for killing his opponent.”

    IANAL, is this a normal argument? Seems we’ve fully entered into a dystopian nightmare at this point. I doubt there’s ever been a more clear confession or prediction of future intent by anyone.

    • earlofhuntingdon says:

      No, it’s not normal. An appellant can argue whatever he wants, which means we’re not yet in a dystopian nightmare. But if Trump’s argument succeeds, then we are down the Fascist rabbit hole.

      This Supreme Court majority leans heavily toward helping Trump, but his arguments go too far, as does Alina Habba’s argument that Kavanaugh and Trump’s other appointees owe him, so they should decide in his favor regardless of the law or the implications of his arguments.

      • Spencer Dawkins says:

        It is truly amazing to think that a former president and current presidential candidate, with a major political party committed to follow him wherever he goes, and with what may turn out to be a functionally unlimited budget for legal defense and appeals, might manage to kneecap the Supremes who would love to agree with him, if only his lawyers would stop saying things that make it harder to agree.

        Saying, “you know, presidents assassinating people with no fear of legal penalties sounds EXACTLY like what the founders intended” might be a bridge too far, even for justices who have so far never met a conservative bridge they wouldn’t cross.

  18. soundgood2 says:

    Just heard Ryan Riley describing Trump in hearing. He said Trump was very animated while his own Lawyer was speaking and nodded vigorously when Lauro said the words Trump was there to hear about how popular he was, etc. He was sitting next to his lawyers scribbling notes. I wonder if his presence had something to do with the extremely rapid pace of his attorney’s speech. Also, I noticed Trump’s attorney asked twice “if their are no more questions, we ask that this hearing be adjourned” Is this normal? I wonder if he was getting worried about his client.

    • P’villain says:

      Sauer, not Lauro, today. And I think his “no more questions” statements merely reflected the strong desire of a man in a hole to be allowed to stop digging.

  19. obsessed says:

    Weissman points out that if Sauer’s reasoning is accepted, POTUS could simply kill or order the killings of the senators who would have to vote to impeach. If you can legally kill the jurors, you can’t be convicted at impeachment and thus can’t be later prosecuted. Checkmate.

    • Rayne says:

      Why not take out any iffy SCOTUS jurists while at it? Appoint new jurists, threaten remaining Senators with execution if they don’t approve the nominations, execute any that are holding out.

      This timeline has gotten sooooo fucking dark so fast. I can’t think much weirder short of summoning Cthulhu to do the dirty work.

        • Rayne says:

          He can’t be sullied, he’s beyond human capacity for damage. Besides, He waits dreaming. Why not summon him for what increasingly looks like the Apocalypse? ¯\_(ツ)_/¯

          • Molly Pitcher says:

            My son has lately been saying that maybe Thanos wasn’t so wrong. But that was in the context of the most rabid Trump voter/ white nationalists.

            • Rayne says:

              *sigh* Now I’m going to have to breakdown and watch that MARVEL superhero film to understand this point.

              Or I could ask my son to give me the tl;dr LOL

        • ExRacerX says:

          You didn’t see any of those “Cthulhu for President: Why settle for the lesser evil?” bumper stickers in 2016? You gotta go big to be more evil than Trump!

          Your favorite search engine will verify that Mr. Cthulhu, the wrathful and much-feared inter-dimensional cosmic deity, first poked his tentacled head into the US political scene in ’96, so it’s already too late.

          • Benji-am-Groot says:

            Ningauble would like to give Mark Meadows some pointers – Cthulhu is willing to have his COS tutor poor Mark on the nuance of honor.

          • Scott_in_MI says:

            Pretty sure I still have a copy of that ’96 Chaosium accessory kicking around somewhere, although I could have sworn it was produced earlier. The unreliable memory of the aged….

    • ChrisM_08NOV2023_1038h says:

      What astounds me is that, historically, the DOJ position seems to imply that if a president uses Seal Team 6 to assassinate his opponent and isn’t impeached and removed, the president gets to serve out the rest of his term. In light of this example, how does the DOJ position on criminal immunity for a current president make any sense?

      [Welcome back to emptywheel. THIRD REQUEST: Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. Because your username is far too common it will be temporarily changed to match the date/time of your first known comment until you have a new compliant username. Thanks. /~Rayne]

        • HikaakiH says:

          Always thought the Nixon OLC memo was bad logic. What’s the point of having Constitutional successors in case the President is unable to continue to function in the role? The only reasonable argument would be to prevent vexatious prosecution, but that issue is dealt with every other day by court systems throughout the US. Perhaps having a President subject to prosecution while in office might encourage the selection (and maybe self-selection) of better quality candidates for the job.

          • Dave_McC says:

            In Rachael Maddow’s Bagman, there was discussion about the OLC memo. And if I recall correctly, it had to do with the fact that VP Spiro Agnew was taking bribes while in office.

      • Ginevra diBenci says:

        I’m assuming that those Seal Team members could be prosecuted/court-martialed for violating their own oaths, and maybe for obeying an unlawful order–although given the present debate, the latter–whether the president’s assassination order is unlawful–would surely require resolution by the courts.

        • Rayne says:

          That’s where pardons come in. ST6 reports the target(s) are down, Trump signs pardons, then resigns.

          A truly unfettered evil president could sell assassination services — not just pardons — using US military or law enforcement, pardon the personnel, and then get away free if presidents are recognized as having immunity for any of their acts performed while in office.

          Barf inducing thought experiment. I hate this is spelling out a road map for the tangerine bagbaw.

          ADDER: I want to note here that selling assassination services is not an unlikely possibility. Here’s a speculative plot arc: Trump brings on anti-Iran polemicist John Bolton as NSA; NSA rants about Iran; DOD is ordered to assassinate Iran’s General Soleimani; Trump’s SIL walks out at the end of Trump’s term with a few billion bucks from parties which could have been interested in Soleimani’s termination. Are there any classified documents to support this speculation? Who knows?

          • Ginevra diBenci says:

            Not a thought experiment at all. The US has farmed out assassination services before. Trump’s taking out Solehmeni struck me as fishy from day one, though I suspected at the time it was repayment for Putin favors rather than prepayment for upcoming largesse. Makes even more sense your way.

            I’ve been around this country for a long time. Very little outpaces my cynicism anymore.

            As far as giving them ideas, I wouldn’t worry. They’re way ahead of us on that front.

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