Trump’s Lawyer Walked Into a Trap

It was a cold and rainy morning in Washington, D.C., yesterday. Five years ago, Donald Trump said that was enough to deter him from visiting Aisne-Marne American Cemetery, to commemorate the fallen American soldiers—soldiers who died defending the nation whose Constitution he had sought to abrogate but now seeks to invoke. But yesterday, he showed up anyway. Appearing in court was more important to him, because this was about him.

And so at 9:25 a.m., the former president and his entourage strode into Courtroom 31 of the E. Barrett Prettyman United States Courthouse on Constitution Avenue, just a few blocks away from the Capitol his supporters had ransacked three years ago Friday, and took their seats. It took just a few short minutes for their case to come completely apart.

The wood-paneled walls of the courtroom display large official portraits of many of the renowned judges who have served on the United States Court of Appeals for the District of Columbia Circuit, known colloquially as the D.C. Circuit and long considered to be the second-most important appellate court in the land. The faces gazing down from the walls were mostly male, with a couple of exceptions. Near the front on the left side, Ruth Bader Ginsburg, wearing a trademark jabot, had one of the better views, directly overlooking the bench, counsel table, and podium. I envied her vantage point; from her perch, I could have seen the expressions of all the players, including the defendant. I found it hard not to wonder what she would have thought of these proceedings.

No doubt she would have approved of the panel of judges who heard the case: three women, of differing backgrounds and of fine reputations, each sworn to “administer justice without respect to persons, and do equal right to the poor and the rich.” The question these jurists faced in the appeal they heard yesterday—styled United States of America v. Donald J. Trump, No. 23–3228—came down to whether justice could be administered to a former president of the United States.

Everyone rose, including Trump, as the women in black robes entered the courtroom. The court quickly got to work. D. John Sauer, a former solicitor general of Missouri (appointed by then–state Attorney General Josh Hawley), an advocate with an exceptionally gravelly voice that runs as fast as any New Yorker’s, stepped to the podium to speak for Trump.

[From the October 2023 issue: The courtroom is a very unhappy place for Donald Trump]

Before he could say anything, the presiding judge, Karen Lecraft Henderson, a George H. W. Bush appointee who nearly a quarter-century ago had taken Ken Starr’s seat on the court, immediately asked Sauer whether the court had jurisdiction to hear the appeal. This wasn’t an issue the parties raised—it surfaced in a friend-of-the-court brief—but the judges understandably wanted to hear what the parties had to say about it.

In a nutshell, the jurisdictional question arose from the fact that the federal courts strongly disfavor “interlocutory” appeals—challenges to district-court rulings before the district court finally decides the whole case. That disfavor can be overcome, on occasion, for appeals of so-called collateral orders: orders deciding issues that are sufficiently divorced from the ultimate merits of the case and that might be effectively unreviewable in a later appeal after a final judgment. In a case called Midland Asphalt Corp. v. United States, the Supreme Court made clear that the collateral-order exception must be narrowly construed, particularly in criminal cases. No court has ever addressed how Midland Asphalt applies to a criminal prosecution of a former president for acts he committed in office.

Sauer, as expected, argued that the exception does apply, and that the court could hear the appeal. I say expected because it could be no other way for his client: If this appeal were dismissed, Trump would not be able to pursue his claim of immunity from prosecution until after he is (as I admittedly hope he will be) convicted and sentenced.

The panel member seemingly most interested in the jurisdictional question was Judge J. Michelle Childs, a Biden appointee who, before joining the D.C. Circuit, had served for 12 years as a federal district judge in South Carolina. Midland Asphalt states that defendants can’t make interlocutory criminal appeals raising issues of immunity from prosecution unless there’s “an explicit statutory or constitutional guarantee that trial will not occur.” Childs’s questions focused on the fact that, whether or not Trump has immunity, the guarantee that he’s relying on isn’t “explicit”—he argues that it’s inherent in the separation of powers. Sauer didn’t have much of a response to this line of inquiry, other than to say, in effect, that presidential immunity claims are special, and that explicit didn’t really mean “explicit.” He did get a little help, though, from Judge Henderson, who made the suggestion that Midland Asphalt was itself only a suggestion from the Supreme Court.

But the jurisdictional back-and-forth was merely a sideshow; what everyone came to hear was the merits of Trump’s immunity argument, and the court’s reaction to it. Sauer and the judges soon obliged. Sauer warned, in effect, that the heavens would fall—ruat caelum, for fanciers of Latin legal axioms—were his client tried for his crimes. “To authorize the prosecution of a president for his official acts would open a Pandora’s box from which this nation may never recover.” He elaborated: “Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses? Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad?”

Sauer never got the chance to answer his own rhetorical questions, because at this point, the panel’s most incisive and persistent questioner jumped in. “Can I explore the implications of what you are arguing?” inquired Judge Florence Y. Pan, a Biden appointee and longtime federal prosecutor in the nation’s capital who also served on the Superior Court as well as the United States District Court there. “I understand your position to be that a president is immune from criminal prosecution for any official act, even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?”

Sauer’s answer: Yes, but with an exception. The exception being that, if a president is impeached by the House of Representatives and convicted by the Senate, then and only then can he be prosecuted in a criminal court, after he leaves office, for the offenses for which the Senate had convicted him.

This was not a great answer. As I wrote a couple of days ago about Trump’s Supreme Court certiorari petition in his Colorado ballot-disqualification case, appellate courts usually don’t find convincing a litigant’s efforts to combine two weak points in order to make a stronger one. Usually, the weakness in one bad argument bleeds into the other, and vice versa—producing a sum that is even less than its parts. And that’s what happened here.

As Judge Pan’s question pointed out, Trump’s main argument on this appeal is that presidents can’t be prosecuted for their official acts. That argument is based on a line of civil cases establishing that presidents can’t be held liable via monetary damages for their official actions—more specifically, as the Supreme Court held in 1981 in Nixon v. Fitzgerald, there is “absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

I know a fair bit about this line of precedent, because (in what seems now to be another life), I ghostwrote the Supreme Court brief for Paula Jones that defeated President Bill Clinton’s claim of immunity, 9–0, in Clinton v. Jones in 1997. Suffice it to say that the rationale behind Fitzgerald encompasses only civil liability because it is grounded in the fear that, if presidents could be hauled into civil court by the countless people affected by their official acts, then the leader of the free world might fear doing his or her job. And even if this protection from civil-damages liability could be extended into the criminal realm, it surely oughtn’t apply here, where Trump was not only acting beyond the “outer perimeter” of his official responsibility, but utterly abjuring that official responsibility.

Still, Trump’s immunity argument is at least an argument: Not a good one, not a winner, but not completely and totally ridiculous. I can’t say it wasn’t worth the old college try. The same cannot be said about the other major contention Trump has urged on this appeal, the argument that Sauer took to conflating with the immunity argument in response to Judge Pan’s questioning.

That second argument relies on what’s called the Constitution’s impeachment-judgment clause, in Article I, Section 3. That provision, in its entirety, says (with the relevant part italicized):

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

By its express terms, all this language does is make sure everyone understands that double-jeopardy protections don’t apply when a federal public official is impeached, convicted, and removed from office. The clause makes clear that the official may still go to jail—that he remains “subject to Indictment, Trial, Judgment and Punishment” even after he is removed from his job.

But Trump’s lawyers contend that this text says something it absolutely does not say: that, if a public official, namely the president, is not impeached and removed by Congress, then he cannot be prosecuted under criminal law. This is fallacious reasoning by “negative inference,” as Judge Childs dismissively put it, and 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.”

[David A. Graham: The cases against Trump: a guide]

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.

I could go on about the impeachment-judgment clause, and the members of the panel certainly did, but the bottom line is that Trump’s argument about that clause was frivolous, and not worth making. In fact, Sauer, by extending that argument to make a limited concession to Pan’s questioning about whether he was arguing that presidents could never be criminally prosecuted—remember, he said that this could happen if the president is first convicted by the Senate—unwittingly set a nasty trap for himself.

A trap that Pan’s brilliant interrogation shut tight.

The judge wasted no time in drilling into the implications and inconsistencies in Sauer’s position. Pan asked, incredulously, “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act—an order to SEAL Team Six.”

To which Sauer replied, unresponsively, that a president would quickly be impeached and removed for that. This was followed by more unresponsive words from Sauer.

Pan wanted an answer—to the question she asked.

Pan: I asked you a yes-or-no question. Could a president who ordered SEAL Team Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?

Sauer: If he were impeached and convicted first—

Pan: So your answer is no?

Sauer: My answer is a qualified yes.

The filibustering then continued, with Sauer rambling on about Department of Justice Office of Legal Counsel memorandums, James Madison, the abuse of the criminal process. Many words.

Pan interrupted again: “I asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you: Would such a president be subject to criminal prosecution if he’s not impeached and convicted? And your answer, your yes-or-no answer, is no?”

Sauer, realizing he was being cornered somehow, tried to avoid the door closing behind him. But Pan was having none of it. Like the experienced prosecutor she is, she insisted on an answer, and wasn’t going to let go. (If this judging thing doesn’t work out for her, I’d love to see her host Meet the Press someday.)

She and Sauer went around and around on this a few more times. But the damage was done, and Pan’s point was devastatingly made—in essence, that Sauer was arguing out of both sides of his mouth. On the one hand, Sauer argued that the Constitution gave the president absolute immunity for his official acts, lest we have political prosecutions of former presidents. On the other hand, if the United States Congress—a political body if ever there was one—effectively gives permission (by impeaching and convicting), well, then, yes, a president can be prosecuted, and—wait for it—he’s not absolutely immune.

It’s hard to know whether the criminal defendant, sitting at the counsel table, could understand enough of the dialogue to know that his immunity argument had completely collapsed, right then and there. But it did.

Sometimes during appellate arguments, there’s a moment when you know exactly how the court will come out. And this was one. I once had such a moment, fortunately in my favor. My one and only argument before the U.S. Supreme Court was in a case about whether federal securities laws could impose liability for securities transactions occurring abroad. I was arguing in the negative, on behalf of an Australian bank. My opponent was up first, arguing in favor of applying American law. I figured I had the conservative justices, but I was a bit less sure about the more liberal justices.

After some preliminary questions to my adversary about jurisdiction, the Court got to the merits. I’ll never forget it. Justice Ginsburg asked a question that was more like a statement: “This case is Australian plaintiff, Australian defendant, shares purchased in Australia. It has ‘Australia’ written all over it.” I don’t know whether I heard the rest of her question, or my opponent’s answer. But I knew right then and there, before having uttered a word to the Court, that my client had won.

As for the special counsel on Tuesday morning, he, too—like everyone else in the courtroom—knew from Judge Pan’s withering questioning and Sauer’s evasive responses to her that Trump is going to lose. The only question is how quickly it will happen. I have little doubt it will be soon.