During Tuesday’s oral argument before the United States Circuit Court of Appeals for the D.C. Circuit, lawyers for former president Donald Trump asked the three-judge panel to believe that up is down and down is up. John Sauer, who represented Trump, turned inside out the clear language of the Constitution, and tried to blithely cast aside positions taken by other Trump lawyers during his second impeachment trial.
Cynics who believe that lawyers will say anything to win a case would not have been surprised by Sauer’s verbal gymnastics. As Henry David Thoreau once observed, “A lawyer’s truth is not the truth… but a consistent expediency.”
But even for them, Sauer’s performance strained credulity.
With Trump looking on, Sauer had the unenviable task of trying to remake the legal world, as well as ordinary logic, to fit with the way Trump sees things. Not surprisingly, the judges did not seem to be buying what Sauer was selling.
As Judge Karen Henderson, a George H.W. Bush appointee, observed, “I think it’s paradoxical to say that… [a president’s] constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.”
Before looking more closely at Sauer’s Houdini-like efforts, let’s recall that the heart of Trump’s case is the contention that the President of the United States is above the law. When Federal District Judge Tanya Chutkan, who is presiding over the election interference case brought against Trump by Special Counsel Jack Smith, turned aside Trump’s immunity claim, she noted that the former president was asking her to convey on him “the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
As the lawyer George Conway puts it, “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.’”
Sauer tried to convince the court of appeals to apply that proposition in the criminal context by arguing that “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 offered two examples of the “parade-of-horribles” that might be unleased if the court ruled that a former president could be prosecuted, neither of which were analogous to the crimes Trump allegedly committed. “Could George W. Bush,” Sauer asked, “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?”
But the judges did not take the bait. Instead Judge Florence Pan, making her own point about the “divine right of kings,” asked Sauer, “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 responded yes, though he noted that a president could be subject to a criminal prosecution if, and only, if he was impeached in the House and convicted by the Senate.
Here, Sauer turned the language of the Constitution on its head.
That language states that the House of Representatives “shall have the sole Power of Impeachment” (Article I, section 2) and that “the Senate shall have the sole Power to try all Impeachments … [but] no person shall be convicted without the Concurrence of two-thirds of the Members present” (Article I, section 3).
So far so good.
However, Sauer ran into problems with Article I, Section 3, Clause 7. It says that the penalties for an impeached and convicted individual are limited to removal from office and a bar from holding future office and that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Sauer wants the court to hold that Article 1, Section 3, Clause 7 does not mean what it clearly says. In his view, it means that the president only can be subject to the criminal process if he is convicted by the Senate.
That reading does violence to the text and history of the Constitution. It also would give 34 senators the power to immunize a president from criminal prosecution for even the most reprehensible deeds by voting to acquit on an impeachment charge (since conviction in the Senate requires a 2/3 vote).
Judge Pan drove home the danger of Sauer’s position when she asked him if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. In response, Sauer again insisted on his perverse reading of Article 1, Section 3, Clause 7 and reiterated that a president could only be prosecuted for such an act if he was first impeached, convicted, and removed from office by Congress.
He offered a vision of presidential power that comports with Trump’s own contention that under Article II of the Constitution, which defines the power of the president, “ I have the right to do whatever I want as president.”
As The Atlantic’s David Graham argues, Sauer’s argument was also “a logical, if scary, extension” of what Trump said in 2016 about the devotion of his followers. “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, okay?” he told a rally in Iowa. “It’s, like, incredible.”
In 2023, what is incredible to people who believe in the rule of law is that Trump wants the courts to turn his musings into constitutional doctrine.
During Tuesday’s oral argument Sauer was also asked to reconcile his position on the president’s immunity from prosecution with what Trump’s lawyers said about the same issue during his impeachment trial in February 2021.
In his opening statement, Bruce Castor had argued that if the Senate did not convict Trump of the high crimes and misdemeanors charged by the House of Representatives he still could be arrested and charged with a crime. As Castor observed, “A high crime is a felony, and a misdemeanour is a misdemeanour. After he’s out of office, you go and arrest him. The Department of Justice does know what to do with such people.”
Another of Trump’s lawyers, David Schoen, also conceded the point that a former president would not be immune from criminal prosecution for acts carried out while in office. As Shoen put it, “We have a judicial process in this country. We have an investigative process in this country to which no former officeholder is immune. That is the process that should be running its course. That is … the appropriate one for investigation, prosecution and punishment.”
On Tuesday, Sauer tried to square the circle by arguing that Trump’s impeachment lawyers had only recognized that “we have a judicial process in this country, period.” They “did not say that we could never raise an immunity defense” in response to criminal prosecution.
Judge Pan would have none of it. Trump, she insisted, “was president at the time, and his position was that no former officeholder is immune, and in fact, the argument was there’s no need to vote for impeachment because we have this backstop, which is criminal prosecution, and it seems that many senators relied on that when voting to acquit.”
Graham characterized the performances of lawyers like Sauer by noting, “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.” But he rightly warned that whether Trump wins in court, “Today’s legal argument could very well be next year’s exercise of presidential power.”