Donald Trump, seated at the end of the counsel table yesterday, heard his lawyer present an argument to a panel of three judges in the DC Circuit that was so far-fetched as to be laughable, so dangerous as to be frightening and so bullying as to cause revulsion to any fair-minded citizen.
Trump’s lawyer, D. John Sauer, argued for a sweeping immunity from criminal prosecution for everything Trump did in office — whether it was trying to overturn an election, promoting fake elector schemes, pressuring his vice president to do something illegal, inciting an insurrection or sitting back for three-and-a-half hours and doing nothing to stop the attempted coup while his minions stormed Congress despite his solemn obligation “to take care that the laws be faithfully executed.”
Sauer argued for a sweeping immunity that would put the president above and beyond the law. It’s a world that no American should want to live in. His position was that because of separation of powers principles, presidential conduct is beyond the reach of the judiciary — even after the president leaves office. Not wanting to go too far, he found one exception in the Constitution: under the impeachment judgment clause, a president could be prosecuted if he was first impeached and convicted after trial in the Senate. As Prof. Laurence Tribe of the Harvard Law School said, the argument “backfired spectacularly.”
Sauer contended that impeachment and conviction are the essential predicate the Constitution requires for criminal prosecution of a former president. Since Trump was not convicted by the Senate, Sauer argued that he is immune, he gets a free ride, a free pass, a get-out-of-jail free card for the rest of his life.
Can this possibly be the law? One of the judges was quick to point out that since the Constitution permits prosecution in some circumstances, Trump’s separation of powers argument falls by the wayside. The impeachment judgment clause provides that the president can be prosecuted after impeachment, trial and conviction — so it rejects broad immunity.
But, taking the argument further, can a president like Nixon who causes his agents to raid a psychiatrist’s office in an effort to get dirt on as supposed political enemy, can a president like Clinton who lies under oath about having sex with an intern in the White House, be immune from criminal prosecution after he leaves office? Our understanding has always been no immunity.
Or, using the hypothetical of one of the judges, can a president who orders the Navy SEALs to assassinate a political rival be immune from criminal prosecution once out of office?
Trump’s lawyer brazenly stood before a court of law and answered yes. It was shocking.
The separation of powers argument is totally belied by judicial precedent. It is for the judiciary to tell us what the law is. The Supreme Court has a history of reviewing presidential action when it appears to exceed legal authority. President Truman seized the steel mills; he may have been right, but the Supreme Court reviewed his conduct, enjoined it and found he lacked the power to do so. George W. Bush imprisoned supposed terrorists in Guantanamo without notice and hearing, and the Supreme Court held that their incarceration was reviewable on a writ of habeas corpus. Trump himself sought to ban Muslims from the U.S. in the supposed interests of national security, and the court reviewed and upheld his executive order, only after it was modified.
There has long been the assumption, arising out of the Watergate era, that a former president could be indicted, tried and convicted in court for official acts committed while in office. When President Ford pardoned Nixon, his proclamation read (in pertinent part):
As a result of certain acts or omissions occurring before his resignation from the Office of President, Richard Nixon has become liable to possible indictment and trial for offenses against the United States. Whether or not he shall be so prosecuted depends on findings of the appropriate grand jury and on the discretion of the authorized prosecutor. Should an indictment ensue, the accused shall then be entitled to a fair trial by an impartial jury, as guaranteed to every individual by the Constitution. …
In the meantime, the tranquility to which this nation has been restored by the events of recent weeks could be irreparably lost by the prospects of bringing to trial a former President of the United States. The prospects of such trial will cause prolonged and divisive debate over the propriety of exposing to further punishment and degradation a man who has already paid the unprecedented penalty of relinquishing the highest elective office of the United States.
The Ford pardon was for “for all offenses against the United States which … Nixon has committed or may have committed or taken part in during” his term in office.
Coming to the present, most of the Republican primary candidates for president, such as Ron DeSantis and Nikki Haley, have said they would pardon Trump if elected. Said Haley, “The last thing we need to see is an 80-year president sitting in jail, I think that further divides our country.” Why pardon him, Gov. Haley, if he has immunity?
The possibility of criminal prosecution has not been limited to Republican presidents. Bill Clinton, with just hours left in office, cut a deal with prosecutors where he avoided indictment over his misleading statements about his relationship with Monica Lewinsky. He gave the independent counsel in return a forthright admission that he had perjured himself and accepted a suspension of his law license for five years.
The legal precedents here are few and far between because conduct such as Trump’s has been unprecedented in our history. George Washington was an icon, and the framers of the Constitution hardly conceived that he or presidents like him would have engaged in criminal behavior.
A time-honored technique of authoritarian figures is to intimidate their critics. When caught red-handed in wrongdoing, they make up some similar charge against their adversaries and threaten to open what Trump and his lawyer both called a “Pandora’s Box” of horribles if Trump lost the case, and the court denied him immunity from prosecution. You know about opening a Pandora’s Box; it’s only the second-worst outcome to opening a Mar-a-Lago box in the panoply of imaginable outcomes.
So, true to form, Sauer conjured the specter of Trump back in office indicting Joe Biden in West Texas over the porosity of our Southern borders. James Pearce, who argued for Special Counsel Jack Smith, answered by asking how likely would it be that conduct similar to Trump’s will arise in the future to plague our republic. And, if it ever does, it would be unthinkable that there would not be criminal prosecution. The check on Trump’s threatened tit-for-tat is the integrity of our prosecutors, and the requirement of a grand jury indictment, as well as the alertness of the judiciary to shut down vindictive prosecutions.
So we beat on, as the panel of three DC appellate judges noodle their way to avoid what may well become a constitutional crisis.
James D. Zirin, author and legal analyst, is a former federal prosecutor in New York’s Southern District. He is also the host of the public television talk show and podcast Conversations with Jim Zirin.
