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 Saturday, and took their seats. It took just a few short minutes for their case to come completely apart.
[T]he 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.
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.
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.
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.”
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. . . . . . 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 1982 in Nixon v. Fitzgerald, there is “absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”
[T]he 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. . . . 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.
[A]s 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. . . . . for “if no such second trial could be had, then the grossest official offenders might escape without any substantial punishment, even for crimes.”
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.
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 had 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.
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.
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 had.
Sometimes during appellate arguments, there’s a moment when you know exactly how the court will come out. And this was one.
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.
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