To say that oral argument didn’t go well for Trump before the three-judge panel of the District of Columbia Circuit is an understatement.
In one tough moment for Mr. Trump during the hearing on Tuesday, Judge Henderson rebutted Mr. Sauer’s argument that for more than 200 years, American courts had never sat in judgment over actions that a president had taken while in office.
Judge Henderson pointed out that until Mr. Trump was indicted, courts had never had to consider the criminal liability of former presidents for things they had done while in the White House.
That’s not to say, however, that Trump’s lawyer, D. John Sauer, offered no arguments of merit.
Still, Judge Henderson, echoing one of Mr. Sauer’s arguments, expressed concern that allowing the election case to go to trial could open the “floodgates” to future former presidents being prosecuted for things they did in office.
The floodgates concern is a curious one, given that there had not been a single prosecution of a former president before Trump. Now that “Pandora’s Box” had been opened, will presidential acts be second guessed for their criminality? Will adversaries use criminal prosecution, or the threat thereof, to try to manipulate presidents to act or fail to act? The first time was a big deal, but will it be a big deal next time or the time after that?
Although the point was poorly made by Sauer, and assumed away by Judge Florence Pan, a key issue that went largely undeveloped was the nature of acts that might be subject to post-presidential prosecution. While it doesn’t answer all questions, can be highly subjective and won’t prevent cynical efforts to abuse the system, the idea that only acts outside the scope of official presidential duties should be subject to potential prosecution at least provides a limit to what a president can do without fear of post-hoc prosecution.
At one point, Judge Pan presented Mr. Sauer with a hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — a military commando unit — to assassinate a political rival. Mr. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding.
In framing the question, Judge Pan took as obvious that an order to SEAL Team Six would be an official presidential act. Sauer did not challenge that assumption, instead giving an utterly absurd answer. But is the ordering of an assassination of a political rival a presidential duty? Judge Pan focused on the “ordering SEAL Team Six” part of her question, and isn’t giving order to a SEAL team an official duty?
Contrary to the judge’s stated assumption, ordering an assassination of a political rival would never fall within the official duties of the president, regardless of whether he ordered a SEAL team to do it or G. Gordon Liddy. Ordering a crime is still a crime regardless of who is being ordered to commit it.
In response to the examples proffered by the prosecution, and adopted by Judge Pan in oral argument, the defense offered two examples of its own, President Bush lying to Congress about weapons of mass destruction and President Obama using a drone to kill an America citizen overseas. Would these accusations survive the “official presidential duties” test? While they were not done for self-enrichment or self-aggrandizement, Trump’s only two motives, there is an argument to be made that a motivated prosecutor might be able to make the case, even if it’s far more tenuous than the Trump’s flagrant conduct.
So what’s the stop a prosecutor from parsing every presidential act of a political adversary in search of some colorable wrong with which to do political damage? Here, James Pearce, arguing for the special counsel, fell back on “trust prosecutors.”
Mr. Pearce, speaking for the prosecution, disagreed, arguing that Mr. Trump was an aberration and that prosecuting him would not result in an onslaught of partisan indictments.
While Trump may well be an aberration, in more way than one, that doesn’t mean the downward spiral of bitter partisan abuse of the legal system won’t follow. The only answer Pearce had to offer was that prosecutors’ purpose is to “do justice,” and so they would never abuse the system to use it for partisan politics. Does that make you feel all warm and fuzzy?
The platitudinous point beloved by certain legal pundits is that not even presidents are above the law. And much as that’s true in one sense, it’s not in another. Presidents are often above the law, and we want them to be above the law, when making extremely hard, complex decisions that are made in good faith and for the benefit of the nation. Of course, whether these decisions are in good faith and for the benefit of the nation is something to be debated after, often for decades. But still, it is the job of president to make the hard decisions, and often they will be choices that involve conduct that would otherwise be crimes.
To reach its result, the circuit court need not solve these problems. It would be more than sufficient to conclude that Trump’s actions on January 6th, to stoke an insurrection to prevent Congress from counting electoral college voles, was so far outside official presidential duties as to be beyond any claim of immunity, wherever the line may be. But that’s not to say that there aren’t some very troubling issues involved here, and the fact that it’s Trump in the dock doesn’t mean we should root for bad law just to make sure Darth Cheeto goes down.