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After having been charged with felonies related to his efforts to overturn his 2020 defeat, Donald Trump has done more than proclaim his innocence. As part of his defense, the former president and his lawyers have also argued that he enjoys near-complete immunity from crimes he might’ve committed during his White House tenure.
U.S. Court of Appeals for the D.C. Circuit this week took up the question, and as NBC News reported, the line of questioning went in an important direction.
Judge Florence Pan immediately peppered Trump’s lawyer with hypothetical situations in which, under Trump’s theory, presidents could not be prosecuted. Could a president, she asked, be prosecuted for selling pardons or military secrets or for ordering the assassination of a political opponent?
“I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?” Pan asked.
D. John Sauer, representing Trump, replied that such a prosecution can take place only if the president is impeached and convicted by the Senate first.
Or put another way, as far as Team Trump is 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.
As my colleague Jordan Rubin explained soon after, “All three judges on the panel expressed skepticism of Trump’s argument,” which was reassuring, given that the argument appeared to be stark raving mad.
But oral arguments at the D.C. Circuit were on Tuesday, and I was curious to see how Trump and his team would handle the issue in the days that followed. An answer has come into focus.
Alina Habba, a member of the Republican’s legal team, for example, sat down with Fox News’ Sean Hannity and initially complained about the judge throwing out “hypotheticals.” Of course, it’s routine, especially during appeals court oral arguments, for judges to explore the implications of assorted arguments, making this an odd thing to complain about.
Habba went on to say that the former president “didn’t kill anyone,” which is very likely true, but also entirely beside the point.
Two days after the exchange between Pan and Sauer, Trump himself confronted a question on the matter, with a reporter asking the Republican, “Do you agree with what your lawyers, what they said on Tuesday, that you should not be prosecuted — could not be prosecuted — if you ordered Seal Team Six to kill a political opponent?”
This was an opportunity for the likely GOP nominee to walk all of this back. Trump let the opportunity pass him by.
“I say this,” the Republican responded, “On immunity, very simple, if a president of the United States does not have immunity, he’ll be totally ineffective, because he won’t be able to do anything, because it will mean he’ll be prosecuted — strongly prosecuted, perhaps — as soon as he leaves office by the opposing party.”
Right off the bat, it’s worth noting that Trump’s predecessors never felt the need to demand immunity from all prosecutions.
But just as important was the context: Asked for his reaction to his lawyer’s contention about a sitting president’s power to order an assassination of a political rival, Trump didn't reject the idea.
It led my colleague Michael A. Cohen to write, “Next fall, Joe Biden can run ads claiming that Trump believes he has the right to kill his political rivals — and they would be 100% true.”