Hard Questions from the D.C. Circuit on Presidential Immunity

Walter Olson

“Trump team argues assassination of rivals is covered by presidential immunity,” was The Hill’s headline. “U.S. president could have a rival assassinated and not be criminally prosecuted, Trump’s lawyer argues,” was the one at Semafor.

It’s true that yesterday’s oral argument before the D.C. Circuit did not go as badly for D. John Sauer, Donald Trump’s lawyer, as the recent congressional hearing went for university presidents. Still, it was eye‐​opening to see just how sweeping was the theory of immunity that Sauer eventually committed to on being backed into a corner by Judge Florence Pan. The specific point of Judge Pan’s line of questioning was that absurdities would result from accepting at face value Sauer’s argument that former presidents can never be indicted for crimes for which they have not been found guilty in an impeachment by the Senate.

I wrote last week about the extreme flimsiness of the part of Trump’s case that tries to make hay of the Constitution’s Impeachment Judgment Clause. George Conway has more at The Atlantic:

…it’s absurd for any number of reasons even apart from the plain meaning of the English language the clause uses. For one thing, a wealth of historical evidence contradicts the argument. As Justice Joseph Story explained in his Commentaries on the Constitution of the United States, even after an acquittal at an impeachment trial, the accused should still be liable to face a criminal trial, for “if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes.”

For another, a public official might be acquitted in the Senate for reasons other than the merits of the impeachment charges against him. In fact, that’s exactly what happened at Trump’s second impeachment trial. As Special Counsel Jack Smith noted in his D.C. Circuit brief, “At least 31 of the 43 Senators who voted to acquit the defendant”—Trump—“explained that their decision to do so rested in whole or in part on their agreement with the defendant’s argument that the Senate lacked jurisdiction to try him because he was no longer in office.” Worse yet, as Henderson and Pan later pointed out during the argument, Trump’s own lawyers conceded to the Senate in February 2021 that, even if Trump were not convicted on the impeachment charges, he could still be criminally charged. Oops.

Nor did the former president get much help from Judge Karen LeCraft Henderson, the conservative on yesterday’s panel. “I think it’s paradoxical to say that his constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate criminal law,” Henderson said (recording).

The panel, Judge Michelle Childs in particular, did express interest in the jurisdictional question— important primarily for timing rather than merits—of whether it may properly at this point hear an interlocutory appeal, which is what both sides favor. (Just Security has an exhaustive look at the court’s options on this question, and Conway a more popular one.)

Assuming that Trump can get no traction on his impeachment‐​related theories, there still remain open questions—perhaps subject to guidance from courts at this stage—on the extent to which he can couch at least some of his actions as official, which might shelter them under a doctrine parallel to Fitzgerald immunity.

Judge Pan had some effective questioning that looked forward to this question. The institutional interests of the Executive Branch are the subject of solicitude under Fitzgerald’s not particularly rigorous balancing test, and Judge Pan pressed Sauer to concede that this cut both ways, not simply in favor of Trump. While the branch may not want to allow sensitive presidential decisions on, say, war powers to be casually second‐​guessed, it also serves Executive Branch interests best if 1) newly elected presidents are allowed to take office as the Constitution provides and 2) laws are not broken and crimes not committed, since a central function of the Executive Branch is to preside over the orderly enforcement of the laws. Trump’s personal interests here are to an important extent not those of the branch over which he once presided.

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