Photo via donaldtrump.com
Donald Trump with news reporters
The great thing we learned from the Appeals Court hearing on former President Trump’s preposterous claim of absolute immunity from prosecution for any crimes he committed as president is how quickly competent judges can demolish absurd arguments that have no basis in the law.
Even more important, the three judges so brilliantly eviscerated Trump’s lawyer John Sauer’s deliberate misreading of the Constitution’s impeachment clause that their final decision will make it extremely difficult for the Supreme Court to rule otherwise.
The most riveting moment was when Judge Florence Pan got Sauer to admit he was seriously arguing in essence Trump had absolute immunity as president to evade criminal prosecution even if he ordered the military to murder Joe Biden or sold top-secret government documents to Vladimir Putin.
Pan laid out such scenarios along with the president selling criminal pardons after Sauer argued Trump couldn’t be criminally prosecuted as president unless he was first convicted by the Senate in an impeachment hearing.
Legal Argument Collapsed
Pan bluntly put the most extreme case to Sauer: “Could a president order SEAL Team 6 to assassinate a political rival?” Sauer tried to dodge the question by claiming without any evidence Republicans would quickly join Democrats to impeach and convict Trump for such a crime.
That’s when Pan made Sauer’s entire legal argument collapse. What if Trump simply resigned before he could be impeached or committed his crimes in his final days as president as he did on Jan. 6, 2021?
“So, he’s not impeached or convicted, we’ll put that aside,” Pan said. “You’re saying, a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival” without ever being prosecuted.
There were plenty of other legal flaws in Sauer’s claim Trump had presidential immunity to commit all the crimes he wanted as all three judges pointed out.
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Constitutional Duty
Judge Karen Henderson, appointed by the first President Bush, declared: “I think it’s paradoxical to say that [Trump’s] Constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.”
Henderson and Pan both nailed Sauer for directly contradicting the argument Trump’s lawyers made in his second impeachment trial to persuade Republicans not to convict Trump for his role in the Jan. 6 insurrection to violently overthrow Biden’s election.
“We have a judicial process in this country,” Trump lawyer David Schoen told the senators. “We have an investigative process in this country to which no former officeholder is immune. That is the appropriate one for investigation, prosecution and punishment.”
That’s why it was ridiculous for Sauer to argue it would violate double jeopardy to prosecute Trump for crimes after Senate Republicans failed to convict him.
Impeachment trials are inherently political. Senators are frequently compared to a jury, but they’re not screened as juries would be in criminal trials for personal biases or conflicts of interest that would prevent them from reaching impartial decisions based on the evidence. For many politicians, just the opposite is true. Their careers are directly linked to a favorable outcome for the defendant.
Brazen Crimes
So why would our founding fathers leave such a gaping loophole in the Constitution granting immunity for presidents to commit brazen crimes unless a partisan Senate voted to convict them? They didn’t. That’s just another one of Trump’s outrageous lies parroted by an unprincipled attorney.
The impeachment clause of the Constitution says just the opposite. Here’s exactly what it says: “The Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Get that? It doesn’t say anything at all about providing immunity for a president to commit crimes. The purpose was to make it clear presidents could still be criminally prosecuted for breaking the law after impeachment. The intent was never to exempt presidents from prosecution unless they were first convicted in an impeachment trial.
District Judge Tanya Chutkan, presiding over Trump’s Jan. 6 criminal trial, explained that when she dismissed Trump’s fraudulent claim of presidential immunity. The Appeals Court won’t take long to do the same.
It’s such an open-and-shut case, the Supreme Court wouldn’t have to even hear the case. If the Court doesn’t review the absurd case, the final decision by the Appeals Court will stand.
Quick Decision?
If the Roberts court hears the case, it needs to settle Trump’s nonsensical claim of presidential immunity to commit crimes quickly to get Trump’s January 6 trial back on schedule before the presidential election.
Last week Americans listened to the most important “true crime” broadcast so far on major news networks in the federal indictment of Trump for his role in the violent insurrection.
Voters on both sides deserve the same opportunity to listen to the case against Trump presented by federal prosecutors and the strongest possible defense of Trump from his attorneys before casting their votes in November.
