(WASHINGTON) — It was maybe the most memorable moment so far in Donald Trump’s case for “absolute presidential immunity” — and it could come up again at the U.S. Supreme Court in historic arguments on Thursday.
The arresting question: Could a commander in chief order SEAL Team 6 to assassinate a political rival and not face criminal prosecution?
His lawyer suggested he could, under certain circumstances.
The exchange took place at the U.S. Court of Appeals in Washington in January, where Trump took his immunity fight after the theory was flatly rejected by U.S. District Judge Tanya Chutkan, who is overseeing his federal election subversion case.
“I asked you a yes-or-no question,” Judge Florence Pan said during the arguments. “Could a president who ordered SEAL Team 6 to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?”
“If he were impeached and convicted first,” Trump attorney John Sauer responded.
“So your answer is no,” Pan said.
Sauer, attempting to avoid a straight yes or no, said his answer was a “qualified yes” as he maintained a House impeachment and Senate conviction needed to occur before criminal liability can come into play. He also predicted that if a president did order an assassination, he would be “speedily” impeached.
Special counsel attorney James Pearce, arguing for the government, called such a theory “frightening.”
“I mean, what kind of world are we living in?” Pearce argued. “If, as I understood my friend on the other side to say here, a president orders SEAL team to assassinate a political rival and resigned, for example before an impeachment, it’s not a criminal act … I think that is extraordinarily frightening future.”
The three-judge panel went on to strike down Trump’s immunity argument in a unanimous decision, stating they could not accept his assertion that a president has “unbounded authority to commit crimes.” Such a stance, they warned, would “collapse our system of separated powers.”
The former president appealed that ruling to the U.S. Supreme Court.
The fallout from Sauer’s response was swift, and continues to feature predominately in amicus briefs filed to the high court as it weighs the case. When justices hear arguments in the case on Thursday, Sauer will again be representing Trump.
In a filing in support of Trump, a trio of former military leaders said regardless of the question of immunity, a president has no authority to order the military to kill a political rival and even if he did, the military would not carry it out.
But other national security experts, in a brief in support of special counsel Jack Smith, were less certain subordinates would refuse a presidential order.
“The rule of law will be threatened unless federal courts have protection against intimidation by a criminal president in command of Seal Team 6 or any other unit of the U.S. Armed Forces,” the brief read.
The immunity question presents an unprecedented constitutional quandary for the Supreme Court. Trump is the first ever president — current or former — to face criminal charges.
The Supreme Court’s decision will determine whether Trump stands trial before the November election on four felony counts, including conspiracy to defraud the U.S. and conspiracy against rights, for his efforts to overturn his 2020 election loss. Trump has denied any wrongdoing and pleaded not guilty to the counts.
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