To say that oral argument didn’t go well for Trump before the three-judge panel of the District of Columbia Circuit is an understatement.
In one tough moment for Mr. Trump during the hearing on Tuesday, Judge Henderson rebutted Mr. Sauer’s argument that for more than 200 years, American courts had never sat in judgment over actions that a president had taken while in office.
Judge Henderson pointed out that until Mr. Trump was indicted, courts had never had to consider the criminal liability of former presidents for things they had done while in the White House.
That’s not to say, however, that Trump’s lawyer, D. John Sauer, offered no arguments of merit.
Still, Judge Henderson, echoing one of Mr. Sauer’s arguments, expressed concern that allowing the election case to go to trial could open the “floodgates” to future former presidents being prosecuted for things they did in office.
The floodgates concern is a curious one, given that there had not been a single prosecution of a former president before Trump. Now that “Pandora’s Box” has been opened, will presidential acts be second guessed for their criminality? Will adversaries use criminal prosecution, or the threat thereof, to try to manipulate presidents to act or fail to act? The first time was a big deal, but will it be a big deal next time or the time after that?
Although the point was poorly made by Sauer, and assumed away by Judge Florence Pan, a key issue that went largely undeveloped was the nature of acts that might be subject to post-presidential prosecution. While it doesn’t answer all questions, can be highly subjective and won’t prevent cynical efforts to abuse the system, the idea that only acts outside the scope of official presidential duties should be subject to potential prosecution at least provides a limit to what a president can do without fear of post-hoc prosecution.
At one point, Judge Pan presented Mr. Sauer with a hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — a military commando unit — to assassinate a political rival. Mr. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding.
In framing the question, Judge Pan took as obvious that an order to SEAL Team Six would be an official presidential act. Sauer did not challenge that assumption, instead giving an utterly absurd answer. But is the ordering of an assassination of a political rival a presidential duty? Judge Pan focused on the “ordering SEAL Team Six” part of her question, and isn’t giving order to a SEAL team an official duty?
Contrary to the judge’s stated assumption, ordering an assassination of a political rival would never fall within the official duties of the president, regardless of whether he ordered a SEAL team to do it or G. Gordon Liddy. Ordering a crime is still a crime regardless of who is being ordered to commit it.
In response to the examples proffered by the prosecution, and adopted by Judge Pan in oral argument, the defense offered two examples of its own, President Bush lying to Congress about weapons of mass destruction and President Obama using a drone to kill an America citizen overseas. Would these accusations survive the “official presidential duties” test? While they were not done for self-enrichment or self-aggrandizement, Trump’s only two motives, there is an argument to be made that a motivated prosecutor might be able to make the case, even if it’s far more tenuous than Trump’s flagrant conduct.
So what’s to stop a prosecutor from parsing every presidential act of a political adversary in search of some colorable wrong with which to do political damage? Here, James Pearce, arguing for the special counsel, fell back on “trust prosecutors.”
Mr. Pearce, speaking for the prosecution, disagreed, arguing that Mr. Trump was an aberration and that prosecuting him would not result in an onslaught of partisan indictments.
While Trump may well be an aberration, in more ways than one, that doesn’t mean the downward spiral of bitter partisan abuse of the legal system won’t follow. The only answer Pearce had to offer was that prosecutors’ purpose is to “do justice,” and so they would never abuse the system to use it for partisan politics. Does that make you feel all warm and fuzzy?
The platitudinous point beloved by certain legal pundits is that not even presidents are above the law. And much as that’s true in one sense, it’s not in another. Presidents are often above the law, and we want them to be above the law, when making extremely hard, complex decisions that are made in good faith and for the benefit of the nation. Of course, whether these decisions are in good faith and for the benefit of the nation is something to be debated after, often for decades. But still, it is the job of president to make the hard decisions, and often they will be choices that involve conduct that would otherwise be crimes.
To reach its result, the circuit court need not solve these problems. It would be more than sufficient to conclude that Trump’s actions on January 6th, to stoke an insurrection to prevent Congress from counting electoral college votes, was so far outside official presidential duties as to be beyond any claim of immunity, wherever the line may be. But that’s not to say that there aren’t some very troubling issues involved here, and the fact that it’s Trump in the dock doesn’t mean we should root for bad law just to make sure Darth Cheeto goes down.
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The way things are going with the “at all costs” folks in both wings of the extremist peanut gallery, it is not beyond the pale that they would call for and legitimize the notion of their lot putting down the evil other lot’s candidate with Seal Team 6. After all, we have already passed the point where blocking the other lot’s candidate from the ballot is okay, if it’s necessary to “defend democracy.”
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?
William Roper: Yes, I’d cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
— A Man for All Seasons (1966)
So, if I understand Il Douche’s position (or at least that expressed by his attorney), Biden could order Trump assassinated and the only recourse would be impeachment.
Do I have that right?
IANAL, but from a layman’s perspective that strikes me as “nucken futz”. YMMV
Remember that the oath sworn by members of the armed services (unlike the President’s constitutionally determined oath) includes the undertaking to defend the constitution “against all enemies, foreign and domestic.” It clearly includes a notion of “domestic” enemies which is undefined in the constitution. By statute, Congress has deemed an “enemy” to include any group or person that has been engaged in hostilities with the United States (50 U.S.C. Sec. 2204). Where the sitting president’s party has determined an opposing candidate to be an “insurrectionist,” this would appear to potentially implicate the definition of “enemy” for purposes of ordering military action.
The only duties Trump ever performed that didn’t annoy me were the porcelain kind, and that’s only because I live on the west coast.
If I understood the excerpts that I heard, Sauer argued that a President could be indicted only after an impeachment and conviction. That raises the bar a lot, enough to block attempts at disruption by the extremist blocs in either party.
And as observed from the bench and detailed in several reports today, Sauer’s argument was the exact opposite of Trump’s arguments to the Senate during impeachment trial #2. Back then he argued the Senate could not convict because the DOJ would be responsible for investigating and prosecuting a former President for crimes committed in office. Truly head-spinning and specious. Sauer tried to wriggle free from the contradiction, but I doubt he succeeded.
As Emerson observed, “A foolish consistency is the hobgoblin of little minds”, and Il Douche could be the poster child for small minds…
One of the things that I studied back at Bob Jones University was game theory. In politics, the best strategy is “tit for tat”, which means that if your opponent makes a move against you, you respond with a similar move. Failure to respond will inevitably result in escalation, and you will get completely rolled.
For instance, if a Senate Majority Leader from the other party modified established norms to eliminate the filibuster for circuit court nominees, you would be compelled to respond, by say eliminating the filibuster for Supreme Court nominees. Otherwise, things could quickly get out of hand.
So, to anyone concerned that a later Republican administration would initiate criminal proceedings against a former Democrat president, yes they will. The logic of their position demands it, which is why I have always been opposed to all of these proceedings, and not because I think that the Bad Orange Man was a great president or even that I believe in his factual innocence. It is corrosive to the health of the republic to initiate criminal proceedings against former presidents–all of them. Eventually, someone will decide that they don’t want to be prosecuted later and elect not to leave office when their term expires.
For all the reasons you stated, I think they should definitely prosecute former elected officials and current elected officials as well. The threat of prosecution might foster honest. law abiding behavior. Elected office should not be a get out of jail free card, during or after. Prosecute them all, no statute of limitations! Until we start doing that, we will never have honest candidates or honest officeholders. Prosecute any and all back to the Reagan administration, at least.
We could create a special penitentiary for Presidents, VP’s, Cabinet Secretaries, Agency heads and Directors. I would design the facility as a trailer park in the center of Nebraska. Communal toilets and showers in one of the trailers.. If Mr. and Mrs. Clinton, find themselves both accused, and convicted; They could be offered reduced sentences if they agree to cohabitate in the same trailer. I doubt they would accept such clemency. Reduced sentence for Biden if he bunks with Trump. Reduced sentence for Bush, if he learns to read. Reduced sentence for Obama if he can go a whole five minutes without referring to himself. Imagine the prison yard with these former officials and their lackeys loitering around. What kind of gangs might they form? Who would get shivved first? Who would be the first to claim to be born again? Who would write their own appeals. Would they tell each other they are innocent, that they were framed? How many would actually get family members to visit? How many would get no visitors at all?
If a President orders a drone strike on an American citizen living abroad killing that person, should he be impeached or prosecuted for an extra judicial killing?
Your question needs to include all the facts: If a president orders a drone strike on a terrorist leader whose whereabouts have just become known, and whose son, an American citizen, is with him, should he be impeached or prosecuted for an extra judicial killing?
Next question: Is this anything, anything at all, like Trump’s crimes?
I look forward to your thoughtful answers.
So, an American who is where a terrorist was supposed to be is fair game? It is an extrajudicial killing of an American with no known ties to terrorism?
From Politifact: “Al-Awlaki’s 16-year-old son, a U.S. citizen born in Denver, Colo., died Oct. 14, 2011, in Yemen when, the Times wrote, “a missile apparently intended for an Egyptian Qaeda operative, Ibrahim al-Banna, hit a modest outdoor eating place in Shabwa. … Banna was not there, and among about a dozen men killed was the young Abdulrahman al-Awlaki, who had no connection to terrorism.”
Is it a crime or is it a presidential decision that went awry? Not even presidents can guarantee that every decision turns out the way it was hoped.
Did the president do this to benefit himself or the country? We can disagree with presidential decisions all we want, but that’s not what takes them outside the scope of presidential duties.
You can put all the lipstick on it you want but killing an innocent American by dropping a missile on his head does not benefit himself or the country. Murder is murder, and I don’t remember the administration at the time saying so much as “Oops,” or “Sorry.”
I thought we stopped assassinating people in the 1970s after the Church hearings. In fact, I’m pretty sure there Executive Orders and laws in place to prevent them.
So, if a President sends $10 Billion to a country that continuously chants “Death to America”, in payment of ransom for some of our citizens, and they use that money to produce drones to send after our ships and those of our allies, as well as nuclear weapons and delivery systems, is that “giving aid and comfort to our enemies”?
Is paying ransom for the release of American hostages within the president’s official duties?
This sort of comparison (as well as Mike V.’s) completely misses the point.