Trump’s Attorney Argues He’s Immune From Prosecution

In a recent hearing at the D.C. Circuit Court of Appeals, former President Donald Trump’s attorney, John Sauer, argued for presidential immunity from prosecution. The media coverage of the hearing has focused on a key exchange between Sauer and Judge Florence Pan regarding the extent of a president’s immunity.

The exchange centered around hypothetical scenarios, with Judge Pan questioning whether a president could order actions such as assassinations or the sale of military secrets without facing criminal prosecution. Sauer argued that a president could face impeachment and conviction in exceptional cases, opening the possibility of criminal prosecution. However, Judge Pan pressed Sauer, asserting that he essentially stated that a president cannot be prosecuted. Sauer maintained that it was a “qualified yes” and that impeachment and conviction were necessary prerequisites.

The hearing also addressed Trump’s federal criminal charges for alleged efforts to overturn the 2020 presidential election results. Trump’s legal team is challenging a ruling by U.S. District Judge Tanya Chutkan that he is not immune from prosecution. The three-judge panel overseeing the case will issue a written decision, which could potentially be appealed to the Supreme Court.
Due to restrictions on cameras in the courtroom, news networks had to rely on audio coverage of the hearing. CNN and MSNBC carried the audio, while Fox News focused on other stories. The trial in the case is scheduled to begin on March 4, but it remains uncertain if this date will hold, considering the appellate schedule for the immunity question. Cameras and audio are likely prohibited from the proceedings, although media outlets have requested exceptions.

During the hearing, Judge Pan continued to challenge Sauer with hypothetical scenarios, questioning whether a president could engage in actions like selling pardons or ordering assassinations. Sauer argued that some actions, such as selling military secrets, might not be considered official acts. He also noted that the sale of pardons had not been prosecuted historically.

James Pearce, arguing for Special Counsel Jack Smith, countered Sauer’s position by stating that this case, involving an alleged conspiracy to overturn a presidential election, was not the place to recognize a new form of criminal immunity. Pearce highlighted the potential dangers of allowing a president to commit criminal acts without consequences.

Judge Karen LeCraft Henderson raised another significant point, asking Pearce how an opinion could be crafted to prevent the floodgates from opening. Henderson noted that previous legal analyses acknowledged the unavoidably political nature of criminal liability. Pearce responded by emphasizing a legal process that is not political and includes safeguards to prevent abuse. He also pointed out that there has been widespread societal recognition, including by past presidents and the executive branch, that a former president can be subject to criminal prosecution.