Dem
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GOP
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Well, OK, Donald Trump wasn't technically on trial yesterday, but he was in a federal courtroom instead of out on the campaign trail. That gives an indication of his priorities. While winning Iowa, especially bigly, would give his campaign a huge boost, being in Club Fed in November would be a downer, so he decided DC was more important than IA yesterday. There, a three-judge panel of the U.S. Court of Appeals for D.C. began the process of deciding whether presidents can do anything they damn well please or if they have to, you know, follow the law. The technical term is "immunity," but in practice if presidents are "immune," they can't be prosecuted for any federal crimes they commit in office (and maybe not state crimes either, although that was not on the docket yesterday).
As we have noted many times, we are not lawyers. However, reader A.R. in Los Angeles, CA, is, and was kind enough to watch the hearing for us and submit a report. Here it is:
Well, this was a first. Donald Trump's lawyer, D. John Sauer, told the court of appeals that if they didn't rule in Trump's favor on the question of absolute presidential immunity, that would allow the "indictment of [Joe] Biden in the western district in Texas after he leaves office for allegedly mismanaging the border and let a Texas jury and a Texas judge sit in judgment of him." (Cue ominous music.) What an interesting strategy—oral argument by threats and attempted intimidation. By the sound of it, no one on the panel (an all-female panel, by the way) seemed the least bit impressed.
More importantly, the panel was skeptical, to say the least, of the notion of blanket presidential immunity. They seemed much more interested in the procedural hurdle that (Z) wrote about yesterday, which is whether this motion is properly the subject of an interlocutory appeal. Without express statutory or constitutional authority, the judges weren't sure they had jurisdiction at this juncture, in spite of the fact that the DOJ was not contesting the issue. The DOJ argued that the court could still hear the case because the question of presidential immunity is of such significance that no one should have to face a trial if it applies. Interestingly, Trump argued the same thing: that immunity includes the right NOT to be tried, which is destroyed if not addressed before trial. The problem is that if the panel finds they don't have jurisdiction, that decision can be appealed to both an en banc panel and SCOTUS, which could really put a wrench in the gears of getting this case heard by summer or even this year. So, the hope is that this panel reaches the merits and does it quickly.
On the merits, the panel interrogated Sauer pretty thoroughly on each of his arguments and seemed to find most of them wanting. From most implausible to least, at least from the panel's standpoint:
- Absolute and Total Immunity: Trump is arguing that the Court has no authority to review anything a president does; so if he ordered Seal Team 6 to assassinate a political rival, he could not be criminally prosecuted even after he's out of office. Trump's attorney reached back to Marbury v. Madison to argue that the founders contemplated exactly this (not Seal Team 6, but presidents committing crimes) when setting up the office of the president, and there was much gnashing of teeth and rending of garments. The judges disposed of this pretty quickly; they all pointed out that since Marbury was decided, there have been many instances when presidential acts have been scrutinized by the judiciary, such as the Youngstown case where the Court examined whether Harry S. Truman could seize control of the steel mills during the Korean War.
- (Kind of) Absolute and Total Immunity: Trump's attorneys also argued that he can only be criminally prosecuted if he is first impeached and convicted by the Senate. The panel was openly baffled by this argument. They pointed out that a president could break the law and resign, thus preventing an impeachment and avoiding prosecution. And also that impeachment decisions are based upon political considerations and the public can't rely on that to hold a president accountable for crimes. Moreover, if they find that the impeachment judgment clause (Art. I, Sec. 3, clause 7) acts to bar prosecutions of former presidents, why wouldn't it also bar prosecutions of "all civil officers of the U.S." (Art. II, Section 4)?
During this portion of the discussion, Judge Florence Pan observed that the panel doesn't need to reach broader conclusions about total presidential immunity because Trump has already conceded it doesn't exist: He's not immune if he's been impeached and convicted. Meanwhile, Judge Karen Henderson (George H.W. Bush appointee) asked Trump's attorney why they took the opposite position during Trump's impeachment. There, they said that Trump should not be impeached because the criminal justice system could prosecute him if appropriate. Sauer dodged the question by saying that he's allowed to raise any defense he wants here.- Discretionary vs. Ministerial Conduct: Another issue that Henderson raised is whether the question of immunity turns on the nature of the alleged conduct. Should they examine the conduct to determine if the acts were discretionary or ministerial? Ministerial acts are those which the officials are duty-bound to perform, while discretionary acts are judgment calls. The former are not generally covered by qualified immunity, since failure to perform them correctly is generally a conscious and deliberate choice. For example, a judge is obligated to seat a jury, which is a ministerial act. In Ex Parte Virginia, the judge had picked a jury based solely on race, and so he was prosecuted for that.
Henderson then asked whether the Court should remand the case for the district court to determine whether the acts alleged in the indictment are discretionary or ministerial. Naturally, Sauer was perfectly willing to accept that outcome. However, in the same breath, Henderson asked, almost rhetorically, why the "take care clause," which requires the president to "take care that the laws be faithfully executed," wouldn't require presidents to follow the law, so that his acts are never "discretionary." And James Pearce, arguing for the U.S., later said that he doesn't believe those issues apply here; he suggested that a lesser presidential immunity may apply in certain circumstances, such as for time-sensitive national security decisions, like a drone strike. But while there may be some situations where circumstances could necessitate applying immunity, the nature of the conduct alleged here does not warrant that, in his view. While this line of questioning is concerning, it is doubtful the votes are there for remanding the case on that basis.- Slippery Slope?: Team Trump has advanced the argument that if presidents are not immune, it will open the doors to all manner of politically motivated prosecutions. This was a particular concern to Henderson. And Sauer hit on this theme hard. According to him, anything less than total immunity would be "republic shattering" and that every president would be "subject to criminal prosecution when my political opponent takes office." Pearce countered with the observation that if that were the case, why hasn't it happened already? According to Pearce, at least since Nixon was pardoned (and why was he pardoned if he couldn't be criminally charged?), it's been understood that a former president is subject to prosecution. Pearce reminded the court of the built-in safeguards in the system: the procedural code and laws prosecutors must follow; the rules for grand and petit juries; and the Article III courts sitting above all that. To reinforce that as a sufficient backstop, he also pointed out there were independent and special prosecutors appointed to look into former presidents, including Reagan and Iran-Contra, and those investigations concluded with no charges being brought.
Pearce also said that the fact that this investigation led to charges does not mean we will have a tit-for-tat; this prosecution "reflects the fundamentally unprecedented nature of the conduct," not the politics of the special counsel. It's also worth noting that this prosecution was not brought by Biden—it was an independent special counsel operating outside the control of the Biden administration, specifically to wall off the special counsel's office from anyone in DOJ or the White House.
Sauer, on the other hand, clearly views every act of a government official as a political act. He genuinely thinks it's appropriate, if this prosecution goes forward, for every future president to be fair game for any kind of corrupt prosecutor with an ax to grind and a score to settle. A failure to find immunity, he said, is "tailor-made to launch cycles of recrimination." And indeed, not 5 minutes after the argument, Trump went before the media to announce that he'll indict Biden once he's elected. Undoubtedly, that is not a coincidence.
Thanks, A.R.!
On that final point, let us reiterate that Trump showed up but didn't actually have to. That was his choice—unlike his August 2023 arraignment, when he was required to be there. Why did he show up? To try to help sell his case, in part, and also to play the victim card and jack up fundraising. Now he can spam all his supporters: "They are after me. I need money to defend myself. If they get me, YOU are next." Trump has had massive turnover among his lawyers the past year. This may be partly due to arguments over billing, partly over disagreements on strategy, and partly because he refuses to follow the advice they give him.
In any case, there is a pretty overwhelming consensus that Trump's lawyers failed to sell his argument yesterday. Here is a selection of headlines:
Meanwhile, here is Fox's front page as it was last night:
As you can see, Fox knows its audience. So, Jeffrey Epstein, NASCAR, space aliens and Chick-fil-A all made the cut, but Trump's court case did not. That's another excellent sign that things did not go his way.
The issues here are so clear-cut, and Trump's side did such a poor job of changing that, that it is likely that a decision is going to come down very soon. Truth be told, it seems very plausible that the judges could rule by the end of the week. (V & Z)