• Show Notes

Dear Reader,

The most indelible moment in Donald Trump’s ongoing, textbook-rewriting Constitutional legal saga was also the most misleading and unnecessary. 

We all remember how it went down. During oral argument on Trump’s presidential immunity claim back in January, District of Columbia Circuit Court of Appeals Judge Florence Pan posed this hypothetical: “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?”

Donald Trump’s attorney, John Sauer – Rhodes Scholar, Harvard Law School grad, Supreme Court clerk, former Solicitor General of Missouri – gave this astonishing answer: “If he were impeached and convicted first.” Pan incisively replied, “So your answer is no.” Sauer tried to recast his response as a “qualified yes,” but the damage was done. The hypothetical resurfaced during Supreme Court oral arguments, with a bit of additional hedging by Trump’s team, but their bottom line position remained mostly unchanged.

Trump’s legal response to the SEAL Team Six scenario speaks powerfully, and frighteningly, to his own conception of presidential powers. It takes a healthy dose of unhinged megalomania to argue for consequence-free political assassination, even in response to a hypothetical. Sauer’s answer, on Trump’s behalf, to the SEAL Team Six question, is wrong, reckless, and self-defeating. It’s also entirely unnecessary to the argument he needed to make, and to how the Supreme Court likely will rule. 

Here’s a better answer, which Trump’s team could and should have given: “Of course a president who ordered SEAL Team Six to assassinate a political rival can be indicted. In fact, this scenario helpfully illustrates our point. The relevant question is whether the charged conduct is within or beyond the outer perimeter of the president’s official job. Obviously an assassination plot would fall outside, and the president would not be immune. But we maintain here that some of the conduct charged against our client was within the scope of the president’s job, and therefore entitled to protection from prosecution.”

When the Supreme Court rules on criminal immunity, any day now, bank on this: the justices will not permit a scenario in which a president can put a hit on a political rival and evade prosecution. Indeed, the Supreme Court can – and I believe will – firmly reject Trump’s SEAL Team Six response, but still establish a more limited (and more sane) variation of presidential immunity. 

The problem with the SEAL Team Six hypothetical – really, with Trump’s response to it – is that it miscasts the legal framework around immunity, and the public understanding of it. Countless times, politicians and commentators have used this scenario to summarily dismiss Trump’s immunity claim: “He said he can murder his political opponent without repercussion, and that’s obviously lawless and crazy, so he loses.” The derision is well-founded. The legal conclusion is not. 

Trump’s team played itself into this unnecessary corner when they adopted the absurd legal argument that a president can be prosecuted only if he has first been impeached by the House of Representatives and then convicted and removed from office by the Senate. They conjured this wild position, briefed it in their papers, and stuck with it at oral argument in both the Court of Appeals and the Supreme Court. It’s an obvious loser and, worse yet, it’s entirely unnecessary. As one federal judge memorably said to me years ago when I made a lousy argument, “You’ve already climbed out on a branch you need not be on, and now you’re in the process of sawing it out from under yourself.” 

The better argument is the one articulated above: it’s all about the scope of the official job. Forget about impeachment by Congress – that’s got nothing to do with criminal prosecution – and focus on whether the charged conduct is arguably part of the president’s duties. 

Indeed, this is precisely the standard adopted by the Supreme Court itself over forty years ago in the case that established civil immunity, Nixon v. Fitzgerald: “[W]e think it appropriate to recognize absolute Presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.” The Court reasoned that federal officials have to make difficult decisions every day, and they should not be influenced or hamstrung by the constant threat of lawsuits over their official actions. All we’re asking you to do, Trump’s team could have sensibly argued, is to adopt the same criminal immunity rule that you’ve already established in the civil context. If we don’t want federal officials worrying about lawsuits, then we certainly don’t want them paralyzed to inaction by fear of criminal indictment. 

Count on the Supreme Court blowing past the impeachment argument and rejecting it out of hand. But that won’t end the inquiry. Look for the Court to consider, and potentially to create, a criminal immunity test based roughly on whether conduct falls within or beyond the president’s official job responsibilities. When the Court issues its decision, it might rule on the spot that Trump’s argument fails under the scope-of-the-job test (which would open the door for a pre-election trial), or the justices might send the case back down to the trial court for further proceedings (which would effectively push the trial out until after the election). 

I expect Trump’s immunity claim will fail, in the end. But it won’t be because of the SEAL Team Six response, which has at once monopolized public focus, oversimplified immunity principles, and created unrealistic expectations about how the Court will likely rule. Rather, he’ll lose (eventually) because a president has no business pulling the levers of power to try to steal an election.

Stay informed,