Trump defends presidential immunity even for the murder of political rivals

“Can a president order [a un grupo de operaciones especiales] who murders a political rival be subject to criminal prosecution without having been politically convicted [en un impeachment]?” Judge Florence Pan's question put Donald Trump's lawyer, John Sauer, on the ropes this Wednesday at a hearing held in the federal courts in Washington. So that his extreme legal theory on presidential immunity did not collapse, Trump's defense, with the former president of the United States present in the room, had to defend it even in that case. The judges of the appeals court reviewing the appeal in the Washington criminal case for trying to alter the 2020 results were not at all convinced. They will probably reject immunity, as the judge did in the first instance, and the case will end up in the Supreme Court.

Trump seems to have taken a liking to the courts. Every time he walks by them he rises in the polls and the cash register of his campaign starts to cash in. So this Wednesday he appeared in Washington at a hearing that he had no need to attend. At the same time that he attended voluntarily and by his own decision, he lied in messages to his followers and on social networks saying that President Joe Biden was forcing him to interrupt his campaign just six days before the caucus of Iowa, the starting signal for the primaries for the presidential nomination. Knowing that the cameras were pointed at him, Trump appeared after the hearing with his usual hoaxes and political propaganda—but without admitting questions—showing that going to court is already part of his campaign.

Without the freezing temperatures of Iowa, Washington also greeted him with a rainy and unpleasant morning. Maybe that's it, maybe everything is tiring, there were hardly any onlookers around the federal court complex, where a few hundred journalists and police officers were waiting for him on guard. Faced with the spectacle of his accusations, this time what there was was a solitary protester playing circus music at full volume.

Inside the building, in court 31, on the fifth floor of the E. Barrett Prettyman building, a short distance from the Capitol, the former president's lawyer was appealing a decision by Judge Tanya Chutkan, in charge of the case, in which she rejected the immunity of Trump emphatically. Special prosecutor Jack Smith wanted the Supreme Court to decide on the matter directly so as not to waste time and to be able to start the trial on March 4, the date for which it was initially scheduled. The Supreme Court, however, has decided to wait his turn, in what is already a small victory for Trump, who manages to delay the case.

“Open Pandora's Box”

Sauer recalled that the US Constitution grants the president immunity for acts performed in the exercise of his official duties. He argued at the hearing that if Trump is now allowed to prosecute, the United States would enter an era of reckoning in which one president prosecutes the previous one. “Authorizing the prosecution of a president for official acts would open a Pandora's box from which this nation may never recover,” he graphically warned, an expression that Trump would later repeat in his appearance. A presidency of revenge and retaliation is, on the other hand, precisely what Trump has promised if he returns to the White House.

According to Sauer, in order for a president of the United States to be prosecuted for acts that can be interpreted as being carried out in the exercise of his office, he must first be politically prosecuted by the House of Representatives through a impeachment and then convicted by the Senate, with a two-thirds majority. Furthermore, he maintained that a president cannot be tried based on the separation of powers.

After his opening statement, the three judges of the Court of Appeals, two of them appointed by Democratic presidents, began to question his arguments. The progressive Florence Pan was especially incisive. In the face of Sauer's evasions, she did not tire of asking and re-asking the same question, sometimes up to seven times, until she got something resembling an answer.

He put Sauer in trouble by reducing his theses to absurdity: he asked him if, in the absence of a conviction for impeachment, a president could be prosecuted for selling nuclear secrets, pardoning criminals, or ordering a special command to assassinate a political rival. He focused on that question, screwing Trump's lawyer, while the president remained impassive, as if with a lost gaze, at his lawyers' table. “It would have to be and would be quickly subjected to impeachment and condemned [por el Senado] before the criminal prosecution,” answered the lawyer. The judge insisted and insisted, but the lawyer continued to maintain the thesis that he could not be charged without a impeachment previous. “So her answer is no?” the judge insisted. “It's a hypothetical yes,” the lawyer replied.

Sauer's argument echoes that of another Trump lawyer in 2019, before a New York court, in which he said that the president could not be investigated or prosecuted while he was in the White House, not even for shooting someone in full Fifth Avenue, but also a statement from Trump himself in 2016 that he could do it and not even lose votes.

Even Judge Karen Henderson, appointed by Republican George HW Bush, seemed skeptical: “I think it is paradoxical to say that your constitutional duty to ensure the faithful execution of the laws allows you to violate criminal law,” she said.

Prosecutor James Pearce insisted that Trump is not immune: “The president has a unique constitutional role, but he is not above the law. The principles of separation of powers, the constitutional text, history, precedents and immunity doctrines point to the conclusion that a former president does not enjoy procedural immunity,” he argued in his turn.

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