On January 9, 2024, a three-judge panel of the DC Circuit Court of Appeals convened at 9:30am EST to hear oral discussions of the implications of a claim by Donald Trump and his defense attorneys that a President has immunity from criminal prosecution for any acts conducted within the sphere of his duties as President. Put an eighteen point bold Helvetica bullet by that statement cuz we're going to come back to that.
Within hours of the conclusion of the hearing it was easy to find commentary stating what a catastrophic case Trump's attorney, John Sauer, made in his arguments before the panel. It remains impossible to find any legitimate opinion that Trump's arguments had any legal merit or purpose, other than satisfying the requirement that a defense attorney attempt every possible means of defending his or her client.
The arguments for immunity put forth for Donald Trump by his defense boil down to the following:
- Section 4, Article 2 of the Constitution should be interpreted as allowing criminal prosecution and conviction of a President for acts committed as President only AFTER leaving office but ONLY if the President was impeached by the House and convicted by the Senate in an impeachment trial for those actions.
- Anything "a" President DOES while "the" President is ipso facto within that President's duties as President and thus covered by said immunity.
The idiocy of these arguments should be obvious to any lawyer or American historian. The idiocy of these arguments should also be obvious to any American citizen with an IQ above 75.
Prioritizing the Public Over a President
The principal that a sitting President cannot be be sued in civil court for official acts performed within the scope of duties as President makes perfect sense. First of all, civil litigation uses a lower standard of proof ("a preponderance of the evidence" versus "beyond a reasonable doubt"), lowering the bar for thousands of decisions a President legitimately makes that SOMEONE is always going to oppose.
Recent history has already provided a useful clarification that a sitting President is NOT immune from civil suits over actions taken PRIOR to becoming President WHILE President. That's a reflection of a belief that ANY form of immunity for the single most powerful role in the government must be carefully restricted.
The language in the Constitution regarding impeachment as a POLITICAL process versus criminal prosecution and conviction of a President as a JUDICIAL process reflects an obvious but crucial reality. A sitting President is the leader of the entire Executive branch of the government which includes the Department of Justice that handles all work associated with investigations, indictments and prosecutions of criminal defendants in the courts operated by the Judicial branch. Any attempt to criminally prosecute a sitting President for ANY action, performed prior to becoming President or while President creates enormous conflicts of interest.
- As head of the Executive branch, a sitting President can attempt to delay or terminate attempts at prosecution by altering personnel under his control to eliminate the threat or direct actions to destroy evidence, etc.
- Employees responsible for investigations, indictments and prosecutions within the Department of Justice may feel undue pressure from the President or merely from other employees loyal to the President which may unjustly affect any attempt at prosecution, drenching any such efforts with political overtones that undermine faith in the ability of officials to equitably enforce the law.
The sole purpose of the language in the Constitution regarding impeachment of a President is to recognize that any attempt to criminally prosecute a sitting President would be INHERENTLY political. So the founders designed a PURELY POLITICAL process called impeachment that the Legislative branch of government could follow to REMOVE a President from office, eliminate the conflicts of interest that would have existed and allow an now-unconflicted Department of Justice to investigate, indict and prosecute a (former) President as warranted based on normal, less politicized criteria.
The founders intentionally designed the impeachment process with "trigger mechanisms" intended to be simultaneously responsive (a mere simple majority vote in the House to impeach) yet conservative (a two-thirds majority in the Senate to convict / remove). Conceptually, the POLITICAL bar for impeachment sits BETWEEN the lower legal standard for civil cases ("preponderance of the evidence") and the much higher standard for criminal conviction ("beyond a reasonable doubt"). When considered from a combination of perspectives for both the public and the President involved, the thinking of the founders seems VERY clear.
In a criminal matter, no citizen is above the law (immune from prosecution) or below the law (unentitled to protections from undue prosecution / conviction enjoyed by others). However, when criminal processes may be required against a sitting President, the PUBLIC'S right to the expectation of a functional Executive branch outweighs a sitting President's "right" to hold power. The PUBLIC comes first. If the House (reflecting the will of the people) opts to impeach and the Senate (testing against a more conservative criteria) decides to convict, that President might face criminal prosecution and might very well be acquitted but the fact that President got close enough to a line triggering that much concern by the public and Congress is enough to justify removal from office.
The corollary to this prioritization of individual rights of a President and public rights to a functional, unconflicted Executive branch is that the impeachment process is SOLELY a POLITICAL process aimed at solving a POLITICAL problem and by definition is NOT a finding of fact under the more strict criminal threshold. As has been seen three times in thirty years, the political judgements of one hundred sitting Senators may have little bearing on actual facts. The failure of a House body to impeach or a Senate body to convict a President has ZERO bearing on any criminal culpability that President might face after leaving office. There was zero intent by the framers of the Constitution to make impeachment and conviction a prerequisite to subsequent criminal prosecution. Impeachment was and is solely a mechanism for hastening the process to get a potentially paralyzed President out of office so the government can focus on its obligations while a civilian ex-President can face whatever consequences might be appropriate.
Trump's Arguments
In the oral discussion before the 8th District Court of Appeals, Trump's lawyer answered questions from the panel for over an hour. The answers provided to the panel's questions were absurd and ultimately should destroy Trump's specific claim. The key question involved the sequential requirement of impeachment and conviction prior to criminal prosecution. The root of Trump's argument is that a President has lifetime immunity from prosecution for any acts performed while President. Not just acts related to official duties, but ANY ACTS.
As the panel posed purposely absurd hypothetical after hypothetical to John Sauer, he continued to state such immunity was absolute. Finally, Judge Florence Pan put the question directly. 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?
Read her question carefully. "…even if that action is taken for an unlawful or unconstitutional purpose."
At that point, Sauer attempted to backpedal, in search of a position that sounded more reasonable. Or, at least, less insane. His actual answer effectively destroyed his own argument. Sauer responded by saying if a President was impeached by the House and convicted by the Senate, THEN he could be criminally prosecuted. (Even this caveat is not terribly forthright. I believe Trump's lawyers have not only argued this point, but further restricted it by saying an ex-President can only be criminally charged for acts cited in the impeachment that ejected the President from office. If a President was impeached and removed from office for an international kickback scheme but also signed off on the murder of a political opponent while in office discovered after impeachment, the murder charge cannot be prosecuted.)
The judges immediately jumped on Sauer's caveat, pointing out that if impeachment and conviction are required for subsequent prosecution, couldn't the President just direct a sufficient number of opponents in the House or Senate to be killed to ensure an impeachment effort fails to gain protection from prosecution?
THESE ARE POINTS ACTUALLY BEING DISCUSSED WITHIN AMERICAN COURTS REGARDING AN EX-PRESIDENT.
Why Such Deference to Idiocy?
The real question to ask regarding the entire collection of criminal cases against Donald Trump is very simple. Why are the courts and media exhibiting such deference to the idiocy reflected in Trump's motions? I started listening to the January 9, 2024 hearing five minutes after it started and could only listen for about twenty seconds of John Sauer before I had to stop. If you remember the scene in The Blues Brothers where Ellwood takes Jake back to his sleazy boarding house / motel and introduces Jake to the motel's manager sitting behind a glass partition watching a boxing match on TV, Sauer sounds exactly like that motel manager. The prospect of listening to that voice for multiple hours was revolting enough but having to listen to the arguments being made was beyond my tolerance.
Sauer's background seems to be no surprise. Sauer received a career boost by being appointed Missouri's Solicitor General by then Missouri State Attorney General Josh Hawley in 2017. While serving as Missouri Solicitor General, Sauer provide Missouri's signature to the motion filed by multiple states supporting the attempt to decertify the electoral votes for the states of Georgia, Michigan, Pennsylvania and Wisconsin.
If I had been a member of the panel, after giving the counsel the time they requested to make their arguments, I would have gaveled the proceeding and told the assembled legal teams...
Thank you very much counselor for addressing our questions. The panel will adjourn this hearing for a short break. My fellow judges and I will be heading in that room over there for a short coffee break to discuss the arguments we just heard and we'll be back in fifteen minutes.
My peers and I would have adjourned to the coffee room, drawn coffee straws to decide which one gets to announce the decision, then walked back into the court after ten minutes, then told the assembled...
The panel has carefully considered the arguments and motion before us. The court will issue this in writing but we have an answer for you right now. The court explicitly rejects the motion, remands the proceeding back to the trial court where it belongs, and explicitly states our finding that there is ZERO serial requirement of a POLITCAL impeachment by the House and conviction by the Senate as a prerequisite for criminal prosecution of an ex-President for ANY action. Furthermore, the court finds there is ZERO immunity from criminal prosecution afforded to any ex-President for ANY action taken prior to office, during office or after office.
I understand that every criminal defendant has a right to defense counsel and that defense counsel has an obligation to pursue any ethical or logical strategy for defending the client. This requirement can involve pretty absurd interpretations of the law that have little or no chance of success before a judge. But this requirement doesn't mean the judges and courts must show such deference for such idiotic claims and theories. There was no need for this hearing to require two weeks of preparation after being granted. Based on the existing law and the arguments made in court, there is no need for a decision by the appellate panel to take even DAYS to formulate. The issue could have been decided in real time and the defendant sent back to trial court.
The same timetable should apply to the inevitable final appeal to the US Supreme Court. A defendant may be entitled to argue an immunity claim from trial to appellate and from appellate to Supreme Court. But it doesn't mean the appellant is owed additional WEEKS to re-re-draft their argument and it doesn't require the Supreme Court to spend more than a hour listening to arguments or spending more than fifteen minutes creating a reply. The arguments have no merit and the time wasted even entertaining them is delaying justice owed not only to the defendant but the larger public.
WTH
