Scott Gurvey's Public Offerings

This is nuts. That’s all I could think as I listened to D. John Sauer, an attorney for Donald Trump, with Trump sitting in the front row of the courtroom, tell a panel of the United States Court of Appeals for the District of Columbia that it should overturn a decision of the district court and dismiss the federal indictment against Trump for crimes connected to the January 6, 2020, mob assault on Congress.

To recap, on August 1, 2023, Special Counsel Jack Smith charged Trump with four federal criminal counts after a grand jury investigation into Trump’s attempt to overturn the 2020 election, culminating in the January 6th insurrection. In October 2023, Trump claimed in the case that he had absolute immunity from prosecution for actions he took as president but Judge Tanya S. Chutkan, the trial judge in the case, rejected (opinion here) Trump’s claim, finding that “neither the Constitution nor American history supported the contention that a former president enjoyed total immunity from prosecution.” Trump appealed the ruling.

You can listen to the entire hearing before a three judge panel of the Court of Appeals (a little over an hour) here. The following is a five-minute excerpt, Judge Florence Pan questioning Sauer with hypothetical situations in which, under Trump’s theory, presidents could not be prosecuted:

It seems to me that I am not the only one who thinks Trump’s assertion he is immune from any criminal prosecution originating while serving as commander in chief is nuts. Judge Pan seems to think so as well. “Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six?” Pan asked. Pan also barraged Sauer with hypotheticals about whether his immunity theory would also apply to a president selling pardons to criminals or selling military secrets to an enemy state. While Sauer sees such immunity in the impeachment judgement clause of the Constitution, Art. I, Section 3, Clause 7, it has never been read in that manner.

Representative Jamie Raskin, Democrat of Maryland, that evening on CNN said, “As a member of Congress, my first thought was, ’Well, then if the president is going to order out for the assassination of his political rivals and say, there’s a narrow margin in the Senate of two or three votes in the opposition party. “What’s to keep him from murdering members of the Senate to make sure that he doesn’t get convicted there in order to deny a two-thirds majority?” 

“He can’t be impeached or convicted because he’s murdered his opposition, and he can’t be prosecuted for it because he hasn’t been impeached or convicted,” he added. Echoing many other legal experts, Raskin panned the argument, describing it as “utterly ludicrous.” “Nobody has ever even attempted such an absurd argument in American history, but it shows you how outlandish and deranged Donald Trump’s worldview is at this point,” he said.

Judge Michelle Childs noted that President Richard Nixon was pardoned upon leaving office, suggesting that no one has ever assumed presidents are immune from prosecution after they leave office, whether or not they have been convicted in impeachment proceedings. Nixon resigned before he could be impeached. His pardon indicates “an assumption that you could be prosecuted,” Childs said. I’ve written about this before.

Judge Karen Henderson, the sole Republican appointee on the panel, cited another part of the Constitution, a provision that requires the president to ensure that laws are faithfully executed. “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” she said.

Henderson says paradoxical. I say nuts.

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