License to Ill

By Nick Catoggio

Wednesday, January 10, 2024

 

On Tuesday, Donald Trump’s lawyer suggested to three federal judges that if a president ordered an arm of the U.S. government to assassinate a political rival, that president probably shouldn’t face criminal consequences for it.

 

Add that to the ever-unspooling list of “things I can’t believe we’ve actually had to talk about since 2016,” as one of my editors said this morning. To make matters more absurd, Trump was sitting right there in the courtroom when his attorney, D. John Sauer, said it.

 

The occasion was an appellate hearing on Trump’s claim of absolute immunity for his conduct surrounding January 6. He can’t be prosecuted for “official acts” taken in the course of his presidential duties, Sauer insisted, touching off a predictable debate over the potential absurdities of such an argument. Anything a president does that can kinda sorta be characterized as “official” is above the law? Selling pardons? Droning American citizens? Staging a coup in the name of protecting “election integrity”? Anything?

 

Yep, said Sauer—unless Congress impeaches and removes him from office over his actions. Then he can be prosecuted.

 

He based that argument on a deliberate misreading of Article I, Section 3, Clause 7 of the Constitution. As George Conway explained in The Atlantic, the point of that provision is simply to make clear that double jeopardy doesn’t apply to impeachment. Corrupt officials who’ve been removed by the Senate can also be prosecuted for the underlying misconduct. From that logic Sauer drew a twisted inference, though: If a corrupt official hasn’t been removed by the Senate then he can’t be prosecuted, at least not for official acts.

 

Which led to this exchange, destined to be memorialized for posterity in a special wing of the Donald J. Trump Presidential Library and Casino:

In other words, whether Biden could eventually be charged with murder for having the CIA kill Trump would depend entirely on whether our Democratic-run Senate could find 67 votes for removal. Huh.

 

There’s a lot to say about that, starting with the fact that it means Sauer’s notion of “absolute immunity” is, uh, not absolute. And that’s no minor contradiction: Per Conway, if the point of immunity is to shield a political actor like the president from criminal liability for discretionary decisions he made in office, it seems strange to grant the power to remove that shield to an institution as nakedly political itself as Congress.

 

But what else could Sauer have argued, realistically? He’s not stupid. He was trapped, as so many others have been, by the impossible choices and civic deformities caused by Trump’s somehow still-not-concluded political journey.

 

***

 

There is, I think, both more and less to yesterday’s “SEAL Team Six” exchange than meets the eye. If all you knew of it were the breathless headlines afterward—WOULD-BE DICTATOR CLAIMS POWER TO KILL WITH IMPUNITY—you wouldn’t be well informed about what had happened and why.

 

As one of my colleagues pointed out in the Dispatch Slack channel, both sides were forced to make uncomfortable logical concessions during the hearing, not just Trump’s. There was no disagreement between the parties, for instance, that former presidents can’t be prosecuted for most “official acts” taken in office. The dispute boiled down to whether all “official acts” should be immune, as Team Trump insists, or whether certain decisions made in the president’s discretion might fall outside the scope of immunity due to sheer awfulness, as special counsel Jack Smith and his team maintains.

 

That’s trickier than it might seem. Imagine that a president ordered the deaths of a number of American citizens abroad, which happens not to be hypothetical. Imagine further that he made his decision based on embarrassingly thin intelligence and without meaningful deliberation. Should he be immune from criminal consequences for an avoidable massacre simply because his order to the military was, unquestionably, an “official act”?

 

We don’t want the president looking over his shoulder when he has to make life-and-death decisions, fearful that he’ll face charges if he chooses poorly in good faith. But we don’t want him feeling free to be as negligent as he might prefer either, just in case he happens to be a narcissistic sociopath. Ahem.

 

To use another wild, not-so-hypothetical example, what if the president were convinced that a national election had been rigged against him, yet his top deputies at the Justice Department weren’t pursuing the matter zealously? What if he resolved to replace the acting attorney general with a lawyer who was zealous about the matter and willing to open criminal investigations that cast doubt on the results?

 

Appointing a new head of the Justice Department is as official as presidential “official acts” get. Was that decision so beyond the pale that the president shouldn’t enjoy his customary immunity for acting officially, within his discretion?

 

It’s not clear where Smith’s team would ultimately draw the line on shielding the president from criminal liability if he wields state power in an unusually outrageous but quasi-“official” way. “Let the courts draw that line, decision by decision, years after the fact” is an unsatisfying standard.

 

***

 

There was also less than meets the eye to Sauer’s “SEAL Team Six” response.

 

To read the headlines, you might assume that he raised that possibility at Trump’s behest, hoping to have the court preemptively bless some sort of killing spree his client is planning upon returning to the presidency. But Sauer didn’t raise it. The court did. And he didn’t make the argument he made (I hope) because he’s keen to see presidents granted all but total legal immunity when abusing their powers. He made it because, as embarrassing as it was, it was the only logical avenue available to him.

 

On the one hand, he had to argue for extremely broad presidential immunity for “official acts.” That’s the only way he can get Trump off the hook for trying to overturn the election. On the other hand, he doubtless recognized that no court will ever endorse a rule as insane as blanket immunity for anything “official” that a president does in office, up to and including murder.

 

So Sauer landed on a compromise of sorts between impunity and accountability: The president’s immunity is almost absolute, the exception being if Congress impeaches and removes him.

 

Which is stupid. But when Donald Trump is your client, having to defend the indefensible will inevitably lead to stupid arguments.

 

Consider just how stupid this one is. Under Sauer’s scheme, “a criminal president could simply resign [before he’s impeached and removed] to receive an instant get-out-of-jail-free card,” Slate’s Jeremy Stahl wrote. “Or, if a president’s criminal conduct happened as he was leaving office and there was no time to impeach and convict, he would also get off scot-free. Further, if criminal conduct were only uncovered after a president’s term had ended and he had left office, there would be no way to hold him accountable.”

 

All of that could be fixed by members of Congress deciding that the president can be impeached and convicted after he’s left office. But as we learned the hard way in 2021, senators don’t like that idea.

 

We can make things more absurd. What if, facing a removal vote in the Senate, the president ordered government agents to start bumping off senators prepared to vote against him? “That would never happen. Those agents would refuse,” you might say. Hopefully! But if that same president intended to purge the federal bureaucracy and restaff it with cronies loyal only to him and his authoritarian vision, who’s to say?

 

Who’s to say he wouldn’t merrily abuse his pardon power to indemnify any agents who committed federal crimes on his behalf, assuming that the Justice Department run by his toadies even made any effort to prosecute them?

 

These are outlandish scenarios, but Sauer’s scheme falls apart even under less outlandish ones. Given the capitulation of cowardly Republican leaders to Trump and his feral populist base over the last eight years, it’s preposterous to make criminal accountability for the president contingent on Congress mustering the courage to impeach and remove him. I’m convinced that Trump’s fanciful point in 2016 about shooting someone on Fifth Avenue has become prophetic in hindsight. If he uses government power to persecute his political enemies in his next term, I’d expect congressional Republicans to contrive excuses for why his actions are justified rather than move against him.

 

To fully grasp how feeble Sauer’s immunity argument is, watch this clip from Trump’s Senate impeachment trial in 2021. In that case, one of his attorneys resorted to arguing that the Senate should feel free to acquit Trump precisely because he isn’t immune from criminal prosecution later. Why, it says so right there in Article I, Section 3, Clause 7 of the Constitution:

As a wise man once observed, it’s curious how the former president’s defenders are forever changing their minds about which institution is the proper one to hold him accountable. When he’s being impeached, they say the courts should handle it. When the courts try to handle it, they say the voters should handle it. When the voters handle it by beating him at the polls, they say the election was rigged.

 

That’s the sort of logic in which Sauer found himself trapped yesterday. Because Trump’s conduct is so hard to defend on the merits, and because there’s so much of it to defend, his advocates are forever forced to argue for total impunity as a rule. Either he enjoys “absolute immunity” by dint of his presidential tenure or every institution that attempts to reckon with him is somehow illegitimate and unfit to pass judgment on him.

 

So the hype over yesterday’s “SEAL Team Six” exchange is a little overblown as a harbinger of second-term doom. But not entirely.

 

***

 

After Trump was impeached the first time in 2020, Republican Sen. Susan Collins was asked to justify her vote to acquit him. “I believe that the president has learned from this case,” she said, infamously, during an interview. “The president has been impeached. That’s a pretty big lesson.”

 

She was justly mocked for that, but she wasn’t wrong. Trump does learn lessons from his scandals. The lesson he learned from that one is that Senate Republicans are so terrified of antagonizing the party’s base by challenging his grip on power that he could do anything he liked as president going forward, no matter how corrupt, and they wouldn’t dare remove him from office for it.

 

A year later, we saw him act on that lesson. He turned out to be right: Having done the most irresponsible thing a president has ever done, at least outside the domain of policy, he still didn’t come within spitting distance of being convicted by the Senate.

 

In a piece at The New Republic, Greg Sargent wonders what sort of lessons a guy with autocratic ambitions might draw from a ruling in his favor finding that presidents do indeed enjoy absolute immunity for anything resembling an “official act” taken in office. In a better world, with Trump having already retired from politics in disgrace, that would be an intriguing but ultimately academic question of law. In the morally diseased world in which we live, current polling suggests that the courts’ judgment on the scope of presidential immunity will have momentous consequences for America next year.

 

If he wins on this front, he’d be largely unshackled in a second presidential term, free to pursue all manner of corrupt designs with little fear of legal consequences after leaving office again.

 

That Trump might attempt such moves is not idle speculation. He’s telling us so himself. He is openly threatening a range of second-term actions—such as prosecuting political enemies with zero basis in evidence—that would almost certainly strain the boundaries of the law in ugly new ways.

 

Now imagine him pursuing this project with a get-out-of-prosecution-free card in his pocket.

 

Forget the hopefully far-fetched SEAL Team Six scenario, Sargent argues. Consider a more realistic one, in which Trump tasks the newly restaffed and “loyal” FBI with harassing Fulton County district attorney Fani Willis in hopes of obstructing her state prosecution of him. Law professor Orin Kerr has been thinking about that too:

The “absolute immunity” argument, were it to prevail, would formalize in law Trump’s sense that he’s rightly accountable to no one, including the state. It would be a license to luxuriate in corruption. And a guy like this …

… doesn’t need any further encouragement to indulge his worst impulses.

 

He’s probably already learned dangerous lessons from this process that don’t depend on the outcome. He’ll lose his “absolute immunity” appeal, almost certainly, but he’ll come away from it understanding that the president nevertheless has a lot of leeway to behave badly provided that his behavior can be semi-plausibly described as an “official act.” That will influence how he behaves in a second term, particularly since—as the events underlying both of his impeachments demonstrated—he sees no reason not to use his “official” powers to serve his personal interests.

 

What’s the worst that can happen to him afterward if he pushes the legal envelope as president in his second term? Several more years of tedious constitutional litigation when he’s well into his 80s and unlikely to serve time in prison even if he’s convicted?

 

The more he thinks he can get away with, the more he’ll try. That’s his psychology. We see it every day, including in an appearance before reporters following Tuesday’s hearing. The fact that his coup attempt has been rewarded by making him the odds-on favorite to be president in 2025 already constitutes immense, potentially catastrophic reinforcement of his suspicions that he can get away with anything.

 

As for poor John Sauer, I suspect he was stuck making an argument that ultimately doesn’t represent the true position of his client. Trump does believe that he should be absolutely immune for his actions as president, no doubt, but he surely doesn’t believe that Joe Biden or Barack Obama should. His ethos, and the ethos of the New Right that’s formed around him, is that the law is just another lever of power to be used against, and only against, the enemy. But you can’t argue that in a federal court to three judges steeped in classical liberalism and intent on crafting a rule of presidential immunity that will apply neutrally to both sides.

 

Which is how we ended up with Donald Trump’s surrogate arguing in favor of Joe Biden’s power to have Trump assassinated with impunity, pending objection from the U.S. Senate. What a country we’ve created for ourselves.