Donald Trump Hearing: Former President’s Attorney Argues He’s Immune From Prosecution — Perhaps Even If He Orders Assassination Of Political Rival

Ted Johnson
·5 min read
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UPDATE: Former President Trump made remarks after Tuesday morning’s D.C. Circuit hearing on presidential immunity.

But with less than a week before the Iowa caucuses, he seized on the attention of the moment to get in digs at President Joe Biden who, if polls are correct, he likely will face in the November election.

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“They’re losing in almost every demographic,” Trump said. “Numbers came out today that are mind boggling if you happen to be Joe Biden.” He countered by claiming that Joe Biden was a “threat to democracy” by claiming his prosecution was politically motivated, even though there is not evidence that the president ordered Trump’s indictment.

Fox News carried Trump’s remarks, even though it did not carry on air the live audio of the hearing itself. CNN carried a portion of Trump’s remarks before going to a fact check and commentary. MSNBC had a split screen of Trump talking with a commentary on the day’s proceedings.

PREVIOUSLY: Former President Donald Trump was in Washington, D.C. on Tuesday to attend a hearing on whether he is immune from prosecution for his alleged efforts to overturn the results of the 2020 presidential election.

As his attorney John Sauer argued before a three-judge panel of the D.C. Circuit Court of Appeals, media coverage quickly zeroed in on an exchange he had over a series of hypotheticals.

Judge Florence Pan at one point told him, “Could a president order Seal Team Six to assassinate a political rival, who was not impeached. Would he be subject to criminal prosecution?”

“If he were impeached and convicted first,” Sauer said.

“So you answer is, no,” Pan said.

“My answer is a qualified yes,” Sauer said. “There’s a political process that would have to occur under our infrastructure, under our Constitution, which require impeachment and conviction by the Senate in these exceptional cases.”

Pan, though, continued to press him on the point, arguing that he was essentially saying that no, a president could not be prosecuted, while Sauer argued that it was a “qualified yes,” in that he would first have to be impeached and convicted in Congress. During the hearing before judges Pan, J. Michelle Childs and Karen LeCraft Henderson, he faced other questions on his arguments that a president could not be prosecuted for carrying out official acts of his office.

Trump is facing federal criminal charges over claims that he conspired to remain in power after the 2020 presidential election. His legal team has challenged U.S. District Judge Tanya Chutkan’s ruling last month that he is not immune from prosecution. The three-judge panel hearing the case will issue a written decision, and the question of immunity is likely to end up in the Supreme Court.

As with many of Trump’s other criminal proceedings, news networks had to work around restrictions that bar cameras from the courtroom. CNN and MSNBC carried audio of the hearing; Fox News largely stuck with other stories.

The trial in the case is scheduled to start on March 4, but it is unclear if that date will hold given the appellate schedule on the immunity question. If the trial does go forward in U.S. District Court in D.C., it’s likely that cameras and audio will be prohibited from the proceedings. Media outlets have asked for exceptions to court rules for this case, given its unprecedented nature, but there are few indications that will be granted.

At Tuesday’s hearing, Pan continued to press Sauer with hypotheticals, saying to him, “So he’s not impeached or convicted. Put that aside. You’re saying a president could sell pardons, could sell military secrets, could order Seal Team Six to assassinate a political rival?”

Sauer said that the sale of military secrets “strikes me as something that might not be held to be an official act. The sale of pardons historically is something that’s come up historically and was not prosecuted.”

Pan, though, pointed out that his brief said that “communicating with an executive branch agency is an official act, and communicating with a foreign government is an official act. That’s what presidents do.”

It’s always risky to guess which way judges will decide based on their questioning, as they typically pepper lawyers with questions designed to puncture holes in their reasoning.

James Pearce, arguing for Special Counsel Jack Smith, told the judges that “at a minimum, this case, in which a defendant is alleged to have conspired to overturn the results of a presidential election, is not the place to recognize some novel form of criminal immunity.”

He said later, “What kind of world are we living in … [if] a president orders his Seal Team to assassinate a political rival and resigns, for example, before an impeachment. Not a criminal act. The president sells a pardon, resigns, or is not impeached. Not a crime. I think that is an extraordinarily frightening future.”

But Henderson asked Pearce about one of Trump’s main arguments: That his prosecution was a political act, carried out by the Justice Department under his political rival, Joe Biden. Trump has made this claim even though there is no evidence that Biden ordered Trump to be indicted.

“How do we write an opinion that would stop the floodgates?” Henderson asked, noting that Pearce’s predecessors had recognized in legal analyses “that criminal liability would be unavoidably political.”

Pearce said, “There is a political process, which is impeachment … but there is a legal process that is decidedly not political, and that is a process that has the kinds of safeguards which members of the court have already referred to. We are talking about prosecutors who follow strict codes.” He added that, at least since the Watergate era, there has been “widespread societal recognition, including by presidents and the executive branch, that a former president is subject to criminal prosecution.”

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