Trump’s Bad Day in Court: The first of many to come (JOYCE VANCE, JAN 10, 2024, Civil Discourse)

The most telling points in the oral argument centered on hypotheticals offered by Judge Pan. Judges frequently use hypotheticals to help them understand what a ruling would mean both for the case at hand and in future cases. Judge Pan posed three to Sauer, asking whether, under his view of immunity, a president could:

order Seal Team 6 to execute a political rival, and get away with it

accept a payment for issuing a pardon, and get away with it

sell nuclear secrets to a foreign power, and get away with it

Sauer argued that presidents can only be prosecuted if they are first impeached and convicted by the Senate. He, of course, has to argue this because otherwise, his client Donald Trump is in trouble.

It’s an unappetizing position. Sauer ran into still more trouble as the hypothetical was played out with both lawyers in turn, exploring the ways a president could avoid being impeached and convicted. They ranged from a president who resigns to avoid conviction, succeeds in concealing criminal conduct until he leaves office so he is never impeached, or even one who orders the deaths of his opponents in the Senate to prevent conviction. Under Trump’s theory of immunity, no prosecution would be available in these cases.

You don’t have to be a high-end appellate lawyer to understand that this argument is a stone-cold loser. At least in a democracy.

Judge Pan pointed out that Trump had taken a contradictory position in two earlier cases. During Trump’s 2021 impeachment and in Trump v. Vance where then-President Trump tried to prevent Manhattan DA Cy Vance from obtaining his tax returns, Trump’s lawyers argued he could be criminally prosecuted once he left office. Sauer was ultimately forced to concede they had taken that position then, but it’s not, he said “res judicata” here—not binding on Trump now. That one is a tough sell too, especially since Trump avoided conviction in the Senate by arguing he could be prosecuted in precisely this case after he left office. If the court accepts this view it would make a mockery of justice. This panel of Judges didn’t seem inclined that direction.

Trump is not the only former president who seems to have understood he could be prosecuted after leaving office. Judge Childs pointed out later in the argument that President Nixon was apparently so convinced he could be prosecuted that he sought a pardon.