Donald Trump, seated at the end of the counsel table yesterday, heard his lawyer present an argument to a panel of three judges in the DC Circuit that was so far-fetched as to be laughable, so dangerous as to be frightening and so bullying as to cause revulsion to any fair-minded citizen.
Trump’s lawyer, D. John Sauer, argued for a sweeping immunity from criminal prosecution for everything Trump did in office — whether it was trying to overturn an election, promoting fake elector schemes, pressuring his vice president to do something illegal, inciting an insurrection or sitting back for three-and-a-half hours and doing nothing to stop the attempted coup while his minions stormed Congress despite his solemn obligation “to take care that the laws be faithfully executed.”
Sauer argued for a sweeping immunity that would put the president above and beyond the law. It’s a world that no American should want to live in. His position was that because of separation of powers principles, presidential conduct is beyond the reach of the judiciary — even after the president leaves office. Not wanting to go too far, he found one exception in the Constitution: under the impeachment judgment clause, a president could be prosecuted if he was first impeached and convicted after trial in the Senate. As Prof. Laurence Tribe of the Harvard Law School said, the argument “backfired spectacularly.”
Sauer contended that impeachment and conviction are the essential predicate the Constitution requires for criminal prosecution of a former president. Since Trump was not convicted by the Senate, Sauer argued that he is immune, he gets a free ride, a free pass, a get-out-of-jail free card for the rest of his life.
Can this possibly be the law? One of the judges was quick to point out that since the Constitution permits prosecution in some circumstances,........