D.C. Circuit Skeptical of Trump's Immunity Claims

Judges highlight the extreme consequences of Trump's argument

This morning a three-judge panel of the District of Columbia Circuit heard oral arguments on Trump’s claim of presidential immunity. The trial judge, Tanya Chutkan, denied Trump’s motion to dismiss based on immunity and double jeopardy and the D.C. Circuit has put the appeal on a fast track. Based on the arguments today, the appeals court seems almost certain to affirm Judge Chutkan and reject Trump’s claims. Here are a few highlights and my thoughts from the argument.

The judges on the panel were Florence Pan, J. Michelle Childs, and Karen LeCraft Henderson. Pan and Childs were appointed by president Biden, and Henderson was appointed by president George H.W. Bush way back in 1990. John Sauer argued for Trump and James Pearce argued for the United States.

The Question of Jurisdiction

As I mentioned in last Sunday’s “Weekend Wrap,” an amicus brief filed by the group American Oversight made a strong argument that the court does not have jurisdiction to hear the appeal at this stage because presidential immunity is not explicitly guaranteed in the Constitution. When Sauer got up to argue, the court peppered him with questions about that right out of the box. His response was that there has to be a right to immediate appeal or the claimed right of immunity would be irretrievably lost, that immunity is required by the structure and text of the Constitution even if it is not explicit, and that the Supreme Court has backed away from the requirement of an “explicit” guarantee of immunity.

When Pearce argued for the government, he said the prosecution agreed that Trump has a right to appeal at this stage. Judge Pan asked him why the government is not contesting jurisdiction, since that would mean the government wins and the case goes back for trial. Isn’t that in the prosecution’s interest? Pearce’s response was that the government’s interest is in seeing that justice is done and in getting the law right, not in gaining a potential advantage in a particular case. In this case the government believes the right answer is that a president has a right to have this issue decided pretrial.

That was a good answer: the Justice Department always has to be thinking about what precedent it may be setting and the long-term implications of its arguments.

Judge Childs seemed by far the most concerned about the jurisdiction argument and she may be inclined to reject the appeal on those grounds. It’s not clear she would get another judge to join her, although Judge Pan also seemed to believe the jurisdiction argument was interesting. Judge Henderson seemed less convinced.

The court also raised the possibility of exercising “hypothetical jurisdiction:” basically ruling that we agree the question of jurisdiction is difficult, and it could be that we don’t have it here. But we don’t have to decide because assuming we do, Trump’s immunity argument fails and so he loses either way. Pearce agreed that would be a reasonable path for the court to follow. I wouldn’t be surprised to see them do that.

Probing the Consequences

Early in Sauer’s argument, Judge Pan hit him with a great series of questions that highlighted the extreme consequences of his position. Trump is arguing that the impeachment judgment clause in the Constitution means that a former president may only be criminally prosecuted if he or she was impeached and convicted for the same or similar conduct.

The impeachment judgment clause provides:

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.

Trump’s argument is that because this clause refers only to the “party convicted” at impeachment being subject to later prosecution, that means, by negative implication, that a party who is not convicted after impeachment cannot be prosecuted.

D.C. Circuit Judge Florence Pan

Judge Pan asked Sauer if his position meant that if a president sold pardons, or sold national security information, or ordered Seal Team 6 to murder a political rival, that president could not be criminally prosecuted unless he was impeached and convicted by the Senate? Sauer squirmed, dodged, and weaved, but Pan did a great job pinning him down and ultimately he had to agree that yes, that was their position.

Sauer tried to argue that in such a case there would almost certainly be a swift impeachment and conviction so it’s not a problem, but that argument doesn’t fly. As Judge Childs noted, the criminal act may not be discovered in time for impeachment, or until after the president leaves office. Or a president could order a political rival assassinated, wait to see if the conduct was discovered, and if it was and he was about to be impeached he could resign and guarantee himself immunity from criminal prosecution for murder.

Pearce noted that the consequences of Trump’s argument lead us to a “incredibly frightening world,” where a president could engage in criminal acts with impunity so long as he managed to avoid being impeached, either through politics, concealing the crimes, or ultimately resigning.

This argument is completely untenable, and that’s why Trump is going to lose this appeal. This post on The Platform Formerly Known as Twitter summed it up nicely:

Editorial note: I’m a big fan of Judge Pan - she’s super smart and is great at getting right to the heart of an issue. She also wrote the majority opinion in Fischer upholding the use of the obstruction of justice law, 18 U.S.C. 1512(c), to prosecute Capitol rioters, that I discussed in this recent post:

The Supreme Court Should Uphold a Key Jan. 6 Obstruction Charge

It Boils Down to the Impeachment Judgment Clause

Judge Pan also got Sauer to admit that essentially the case boils down to whether he’s right about the impeachment judgment clause: that a president can only be prosecuted if he was previously impeached and convicted by the Senate. Sauer made a lot of general claims about presidents having absolute immunity for their official acts. But Pan got him to admit that even under his theory, a president could be prosecuted for official acts as long as he was impeached and convicted first. So it isn’t true, even under the defense argument, that a president’s official acts can never form the basis of a prosecution.

Pan also pointed out that there are many examples of the Supreme Court reviewing a president’s official acts, such as president Truman’s seizure of the steel mills that led to the well-known case of Youngstown Sheet and Tube v. Sawyer, or the Court’s review of president Trump’s actions on immigration. So it isn’t true, she argued, that a president’s official acts can never be reviewed by a court, as Sauer was claiming. Sauer tried to respond that in those cases it was actually only subordinates of the president whose actions were enjoined by the Court, not the president himself, but that argument makes no sense. As Judge Pan pointed out, they were presidential official acts, even if subordinates carried them out, and there was no suggestion a court could not review them.

Pearce agreed with Judge Pan that because Trump has conceded that official acts may lead to prosecution in some cases, the case essentially boils down to whether Trump is right that it’s only true when the president was impeached and removed from office.

This was a key concession by Sauer, because the argument based on the impeachment judgment clause is incredibly weak. It makes no sense to say that a president can commit crimes with impunity as long as he avoids being impeached and convicted for those crimes. There’s no basis for that argument in text, history, or common sense.

Exposing the Inconsistencies

In addition to highlighting the extreme and frightening consequences of Trump’s position, the judges pointed out a number of inconsistencies in his argument.

Judge Henderson noted that it seemed to her “paradoxical” that a president who has a duty under Article II to take care that the laws are faithfully executed could also willfully defy those laws with impunity.

Judge Pan argued that although Sauer says the primary concern is a president being afraid to act due to fear of criminal prosecution, there are other Executive branch concerns at issue here. They include the interest in seeing federal criminal law enforced and in ensuring that a new presidential term vests every four years and that a president doesn’t commit crimes to stay in power indefinitely. Those are also important Executive branch interests, she noted, and they cut against Trump’s position.

Both Judge Pan and Judge Henderson also pointed out that during his second impeachment trial, Trump’s attorney said that “no former office holder is immune from investigation and prosecution.” His attorneys in that proceeding argued that impeachment was not necessary because Trump could be criminally prosecuted. A number of Senators may have relied on that when deciding not to convict. But now Trump is arguing that because he was not convicted at the impeachment trial, criminal prosecution is barred. (I believe the technical term for that is, “bait and switch.”)

There Will Be No Floodgates

The court asked Pearce to respond to Sauer’s argument that if they hold a president can be prosecuted for crimes committed in office it will open the floodgates to future prosecutions, with incoming presidents routinely prosecuting their predecessors of the other party. I really liked Pearce’s response here. He said he wanted to push back on the idea that we would be opening the floodgates. He noted that since at least the Nixon era, when Nixon accepted a pardon for his conduct in office, we’ve believed a former president potentially could be prosecuted. But we haven’t seen such prosecutions become routine.

Pearce said Trump’s actions were unprecedented and so this prosecution is unprecedented. But that does not mean we will now have a “sea change” and a future of “tit-for-tat prosecutions” of former presidents, when we haven’t seen that in the fifty years since Nixon resigned.

Sidebars readers may recognize that this is very similar to the argument I made about the obstruction statute, 18 U.S.C. 1512(c), that the Supreme Court has agreed to review. Opponents trot out a “parade of horribles” about all the other prosecutions of innocent conduct that might result. But the fact that the statute is applied to the unprecedented facts of January 6 does not mean the prosecution will unleash a wave of inappropriate cases, when those cases have been theoretically possible for decades but have not been brought.

What Happens Next

I expect the judges to rule very quickly, probably within the next week or two.

Trump’s claim of immunity will be rejected. The court could take a few different paths. It could find that it has no jurisdiction. I think it’s more likely it will adopt the “hypothetical jurisdiction” argument noted above and say that we might not have jurisdiction, but assuming we do, Trump loses anyway.

Judge Henderson at one point floated the idea that if the court were to find there is some form of immunity but only for “official acts,” the court might need to remand the case to Judge Chutkan for findings on whether the acts alleged in the indictment qualify. Sauer agreed that if that was the court’s holding, then a remand to Judge Chutkan would be appropriate.

If he can’t win outright, Sauer would love a remand for further findings because that would mean substantial further delays. But I didn’t get the sense that a majority of the panel is inclined to go that route.

Assuming Trump loses, he can then seek en banc review by the full D.C. Circuit, followed by seeking certiorari to the Supreme Court. Stay tuned!