Trump’s Immunity Defense: The President is a Murderer? No Problem!

On January 9, Donald Trump returned to the scene of his crime–or close to it. Three years and three days after he exhorted an angry crowd to march on the Capitol and “fight like hell,” Trump showed up at the E. Barrett Prettyman Federal Courthouse a few blocks away. He was there in his familiar if tiresome role as a defiant victim and to back his lawyer’s outlandish argument that he is immune from prosecution on charges that he tried to stage a coup and subvert the 2020 election.

In the Mar-a-Lago case, Trump got a lucky draw with the pliable, incompetent Judge Aileen Cannon, whom he had named to the bench. Not this time. This panel of legal interrogators is shaping as his worst nightmare: Three women judges, two of them Joe Biden appointees. 

The oral arguments in what is formally known as the U.S. Court of Appeals for the District of Columbia Circuit (“the D.C. Circuit”) offered a preview of how the Trump Coup Trial will come across to the public when it finally opens, with any luck, in late spring: with old-fashioned sketch artists and reporters conveying what it felt and looked like inside the courtroom.

Even on days when we’re not assigned to the press pool, the two of us will build on our Trump Coup Trial Primer and be there for you throughout this historic case.

Tuesday’s defining moment came when Judge Florence Pan—a former local judge and Biden appointee emerging as a star in the legal community— asked a devastatingly on-point question of Trump lawyer D. John Sauer: “You’re saying a president could sell pardons, could sell military secrets, could tell SEAL Team Six to assassinate a political rival?” 

Sauer (apparently no relation, thank God, to Chicago Cubs legend Hank Sauer) replied with a rasp that a former president was immune from prosecution unless first impeached by the House of Representatives and convicted in the Senate.

“But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan asked. 

Sauer doubled down that Congress would have to act before any indictment could take place. 

“So your answer is no,” Pan said.

It doesn’t take an Oliver Wendell Holmes (or a Sherlock Holmes) to figure out that Sauer’s logic would allow a homicidal president to resign before impeachment and walk away scot-free after ordering the shooting of someone on Fifth Avenue. Or if he or she could prevent 35 Senators from voting for conviction, then it’d be carte blanche.

As Jack Smith’s vivid brief argued, under Trump’s theory, a president who hadn’t been both impeached by the House and convicted by the Senate would be immune from criminal prosecution for ordering the National Guard “to murder his most prominent critics,” or for selling nuclear secrets to a foreign adversary, or for accepting a bribe for a lucrative government contract, or for ordering the FBI Director to plant incriminating evidence on a political enemy. 

All three judges seemed appalled by Trump’s position, and appropriately so. It’s conspicuously weak in light of constitutional text and history.

To that end, Pan probed Sauer’s theory that a prosecution against a former president could proceed after impeachment in the House and conviction in the Senate. Once Sauer confirmed that interpretation, Pan destroyed the heart of his argument—that the constitutional separation of powers gives presidents immunity from the other branches.

Pan emphasized that this position suggested a possible clear and narrow path for the D.C. Circuit: Reject Trump’s flimsy argument on the impeachment clause of the Constitution as a barrier to prosecution and, in the wake of that rejection, let the government proceed with its monumental case. 

Another highlight came when Judge Karen Henderson, an appointee of President George H.W. Bush, zeroed in on a huge legal flip-flop by Trump’s lawyers. In Trump’s second impeachment trial, the president’s lawyers told senators that the availability of future criminal prosecution for a former president was a reason to acquit. Now, Henderson noted, his counsel is arguing that a former president cannot be prosecuted after an impeachment acquittal. Sauer weakly maintained that the former lawyers were referring to investigation, not prosecution, and that, in any event, the former lawyers’ statements are not binding in this proceeding. 

Henderson’s point landed—and it was significant coming from her, a conservative but idiosyncratic judge.

Sauer, a Rhodes Scholar and Josh Hawley protege, tried to make a big deal out of a 1982 civil case, Nixon v. Fitzgerald, in which A. Ernest Fitzgerald, a Pentagon whistleblower fired during the Nixon Administration for drawing attention to Air Force cost overruns, sought to sue Nixon—by then a disgraced former president— for wrongful termination. The Supreme Court held that presidents are immune from civil lawsuits for actions within the “outer perimeter” of their official duties. Justice Lewis Powell’s opinion made it clear that this decision applied to civil, not criminal cases, a point Sauer tried to elide.

In his brief, Smith argued—and Judge Tanya Chutkan agreed—that the Nixon v. Fitzgerald outer perimeter standard does not apply in a criminal prosecution because of the very different societal interests at stake in enforcement of criminal laws. 

The judges’ questions suggested that some charged acts, like subverting a free and fair election, clearly fall outside the “outer perimeter.”

But what about the other charges? Do they involve official conduct (merely “investigating” vote fraud, Trump says) or a criminal candidate desperate to win and far outside the outer bounds of his official duties? 

If the D.C. Circuit adopts a standard requiring a determination of whether each allegation in the indictment falls within the “outer perimeter,” it would almost certainly slow the process. While it’s unlikely that a majority of the court will decide the case by painstakingly applying the “outer perimeter” standard, it is not impossible. Based on her questions, Henderson might favor such a time-consuming process.

And down the road, the Supreme Court may punt and delay by sending the immunity claim back to Judge Chutkan to assess the “outer perimeter” standard on elements of all four charges.

When Tuesday’s hearing focused on the Constitution, both sides invoked the Founders. In handling the appeal for Jack Smith, James Pearce —an experienced federal prosecutor—stressed that the framers explicitly established a constitutional structure in which the president is not “above the law.” 

Sauer ignored that this is the essence of our constitutional republic and repeatedly tried to rely on Marbury v. Madison, the landmark 1803 opinion establishing the Supreme Court’s authority to strike down an act of Congress as unconstitutional. (One of us—Cliff Sloan—co-wrote a book on that case.)

Sauer argued implausibly that Marbury stands for the proposition that a president’s official acts are “never reviewable” by a court. Not surprisingly, none of the judges bought this contorted and bizarre reading of Marbury. Chief Justice John Marshall’s historic opinion in that case actually focuses on the differences between mandatory obligations (e.g. following the law), which are entirely reviewable, and discretionary determinations (e.g. making a foreign policy decision, which are not. As Pearce aptly countered, a president’s compliance with criminal laws is not discretionary. 

The three judges all emphasized that the president has an obligation under the Constitution to “take care that the laws be faithfully executed,”—which is obviously inconsistent with Trump’s view that he could flout criminal laws and prevent his duly elected successor from taking office.

The Trump argument with the most traction—at least with Judge Henderson— seemed to be the one invoking a “Pandora’s box” that would supposedly open if Trump lost. Sauer argued that if Trump can be prosecuted as a former president, George W. Bush could be prosecuted for lying about Iraq, Barack Obama could be prosecuted for a drone strike that hit a suspected terrorist who was a US citizen—and, chillingly, that Joe Biden could be prosecuted after leaving office for mismanaging the border. It was hard to avoid the impression that if Trump wins in November, he will stop all of the criminal cases against him and start new bogus prosecutions of one or more of his predecessors.

While the judges generally did not seem receptive to this line of attack, Henderson seemed concerned about “open[ing] the floodgates” and “cycles of recrimination.” She pressed Pearce on whether the prosecution of a former president doesn’t always have some element of politics. He responded by noting the protections afforded by the standards of the criminal justice system. Sauer sensed a possible opening. He began his rebuttal by invoking Henderson’s “floodgates” comment, which he hopes might interest other judges on the D.C. Circuit and, eventually, the Supreme Court. 

A chunk of the hearing involved a jurisdictional wild card: An amicus brief by American Oversight, a public interest group, argued that appellate courts simply lack jurisdiction over Trump’s immunity appeal, just as they do on potentially dozens of other issues that defendants in criminal trials are only allowed to appeal after conviction. 

American Oversight relied on a unanimous opinion by Justice Antonin Scalia in a different context; the organization argued that because the Constitution and applicable statutes do not explicitly mention presidential immunity as a way to avoid standing trial, no appeal can be heard now.

Judge J. Michelle Childs, an oft-mentioned runner-up when Biden named Ketanji Brown Jackson to the Supreme Court, was the only judge who seemed interested in the jurisdiction question, which many commentators have hailed as a possible silver bullet that would get the trial on track quickly. 

In truth, it has the potential to do the opposite—bogging down the case in a new argument that would have to be litigated. Even if the D.C. Circuit surprises everyone and decides that it has no jurisdiction, the Supreme Court would likely feel obliged to review this tangential and technical issue, consuming more precious time.

So what happens next? Some casual observers expect that the D.C. Circuit will decide the case quickly in favor of the prosecution and that the case will then move promptly to the Supreme Court.

Alas, it’s a little more complicated than that.

If Trump loses with this three-judge panel, as seems likely, he will almost certainly seek a rehearing in front of the full D.C. Circuit, which consists of eleven judges. This is known as en banc review. It’s extremely unlikely that the full court would vote for it. But if even a single judge—such as Neomi Rao, an ultra-conservative former Clarence Thomas clerk and Trump appointee—wants to write a dissent from the denial of an en banc rehearing, it could slow the process. The D.C. Circuit might end up tarrying for weeks without any public statement explaining why. Under customary legal procedure, the Supreme Court would not take the case while it remains pending in the D.C. Circuit.

Make no mistake: Trump’s lawyers know the importance of an en banc request. Sauer closed his argument for Trump by quietly noting, in a comment that has attracted little notice, that if the panel rules against Trump, he will seek both en banc and Supreme Court review. He requested a stay of the court’s decision if it goes against Trump – and a continued halt to the proceedings until both the en banc request and Supreme Court deliberations on Trump’s immunity claims are resolved.

If this scenario unfolds, it will present a defining challenge for D.C. Circuit Chief Judge Sri Srinivasan, a brilliant judge widely respected across the ideological spectrum. Srinivasan would have various tools at his disposal to speed the case. For example, he could direct that the D.C. Circuit formally deny the rehearing with a one-sentence statement that Judge Rao dissents (along with anybody else who agrees with her)— and that the dissenting opinions will be issued at a later date. 

It is no overstatement to say that the fate of the constitutional republic might rest with whether Srinivasan can steer the court he leads to act expeditiously and avoid delay. Srinivisan’s distinguished public record—as a skilled Supreme Court lawyer and revered judge—suggests reason for hope that he will rise to the occasion.

Jonathan Alter is an author, NBC News political analyst, and contributing editor of the Washington Monthly. Cliff Sloan, who has argued many cases in the D.C. Circuit and the Supreme Court, is a professor at Georgetown Law School. 

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