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As special counsel Jack Smith’s elections case against Donald Trump has progressed, the former president hasn’t just proclaimed his innocence. The Republican and his defense attorneys have also claimed that he enjoys near-complete immunity from crimes he might’ve committed during his White House tenure.
A federal district court rejected the argument, concluding, “[The] defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Team Trump took the same claim to the D.C. Circuit Court of Appeals, where the judges were not only unpersuaded by the argument, they also presented the former president’s lawyers with a hypothetical: Could a president be prosecuted for ordering the assassination of a political opponent?
D. John Sauer replied that such a prosecution could possibly take place — but only if the president is impeached and convicted by the Senate first. Or put another way, as far as Team Trump was concerned, a sitting president could order SEAL Team Six to literally murder his or her political rivals, and that president shouldn’t face criminal prosecution unless a majority of the U.S. House and two-thirds of the U.S. Senate act first.
When this flopped at the circuit court, the presumptive GOP nominee and his defense counsel took the matter to the U.S. Supreme Court, where as NBC News noted, the same question returned to the fore.
In a question to Sauer, Justice Sonia Sotomayor posed a hypothetical: If the president ordered the military to assassinate a rival he views as corrupt, “is that within his official act for which he can get immunity?” Sauer answered that, “it would depend,” but “we can see that could well be an official act.”
He was, by all appearances, quite sincere about this.
The phrase “official act” dominated the oral arguments at the high court yesterday, with Trump’s lawyer repeatedly insisting that a president must be free to make “official acts” without fear of possible prosecution while in office. Could that include ordering the assassination of an opponent? Maybe so, Sauer answered.
How about selling nuclear secrets to a foreign adversary? Again, Sauer said that, too, could be “structured” as an “official act,” which would mean that a president would have to be impeached and convicted by the Senate first.
“How about if the president orders the military to stage a coup?” Justice Elena Kagan asked. “I think it would depend on the circumstances,” Sauer replied.
All of which left us with an unsettling dynamic:
- Trump’s defense counsel concocted an audacious immunity claim, rooted in the idea that a president can commit some of the most outrageous felonies imaginable.
- Every federal judge who’s ruled on the argument has fundamentally rejected it as ridiculous.
- Team Trump continues to double down on the claim as if it has merit — and it’s at least possible that an untold number of Supreme Court justices might be willing to rule in the Republican’s favor.
Most high court observers tended to agree yesterday that the justices will not endorse Trump’s expansive claims to absolute immunity. It’s more likely that the Supreme Court will come up with some kind of new rule related to prosecutions and “official acts,” all of which will send the matter back to the district court and delay the process further.
And since the entire point of this absurd series of appeals is to run out the clock before Election Day 2024, the justices will be playing their part in effectively immunizing Trump from pre-election accountability for the most serious of the former president’s alleged felonies.
It was nevertheless against this backdrop that Team Trump once again confronted the “assassination” question, and answered it in a head-spinning way.
This post updates our related earlier coverage.