D.C. Circuit judges extremely skeptical of Trump's post-presidential immunity claim

"I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws," one judge said.

On Tuesday morning, the U.S. Court of Appeals for the D.C. Circuit held arguments over Donald Trump’s claims that presidential immunity and the Impeachment Judgment Clause bar his prosecution by Special Counsel Jack Smith in federal court in D.C.

Neither of Trump’s arguments appeared to hold much weight with the three-judge panel that heard nearly 80 minutes of oral arguments from Trump’s lawyer, John Sauer, and an assistant to Smith, James Pearce.

“Never in our nation’s history, until this case, has a president claimed that immunity from criminal prosecution extends beyond his time in office,” Pearce argued. “A former president enjoys no immunity from criminal prosecution.”

More than anything else, the arguments served to show the radical scope of Trump’s claims. Sauer, in arguing for blanket immunity for Trump, claimed that allowing Smith’s prosecution to proceed would open “a Pandora’s Box from which this nation may never recover.”

At the conclusion of the arguments, though, it appeared almost certain that the panel did not see it that way.

Minutes into Sauer’s argument, Judge Florence Pan, a Biden appointee, questioned Trump’s primary claim — that a president is absolutely and permanently immune from prosecution for official acts taken while president, even once that person leaves office — by pointing to the logic behind Trump’s other claim — that prosecution would be allowed after impeachment and conviction.

“All of your other arguments seem to fall away … if you concede that a president can be criminally prosecuted under some circumstances,” Pan said, asserting then that the question here in Trump’s case would become solely whether the Impeachment Judgment Clause actually limits criminal prosecution of a former president in the absence of Senate conviction in an impeachment.

Trump’s legal team uses the Impeachment Judgment Clause to argue that criminal prosecution of a former president is only allowed if the president has been impeached by the House and convicted by the Senate.

Here’s the clause:

But, from the opening moments of Tuesday’s argument, Pan used it to utterly demolish Trump’s absolute immunity argument, getting Sauer to agree that his argument would mean that a president could sell pardons, sell military secrets, or have SEAL Team Six assassinate a political opponent without being able to face criminal prosecution unless the U.S. House impeached that president and the U.S. Senate convicted that person for that act.

When Pearce later got up, as to this “impeachment first” rule, he argued that such a rule “is wrong for textual, historical, structural,“ and “practical” reasons — echoing Pan’s SEAL Team Six example, practically, and also pointing to what the clause does as merely setting limits on Congress’s sanctions under impeachment and establishing that impeachment conviction doesn’t bar subsequent prosecution.

The jarring, contradictory nature of Trump’s argument was made abundantly clear when Sauer was confronted by the fact that Trump’s lawyers acknowledged in the second impeachment against him that criminal “investigation and prosecution” is available to a president after leaving office.

To that, Sauer was left arguing that the prior argument doesn’t have “res judicata” effect here — a legal term that means, essentially, “we’re not held to that past argument in this case.”

In what appeared likely to become a side-note, Judge J. Michelle Childs, another Biden appointee, asked Sauer to respond to the arguments raised by American Oversight in an amicus brief that the court lacks jurisdiction to hear the appeal at this time. Both Sauer and Pearce disagreed, arguing that the court has jurisdiction to hear this early appeal of these issues, called an interlocutory appeal.

Looking outside of absolute criminal immunity at broader judicial review of governmental actions, Judge Karen Henderson, a George H.W. Bush appointee, pointed to cases evolving from Marbury v. Madison that distinguish between discretionary actions, which would be immune from judicial review and ministerial actions, which can be reviewed.

Henderson also asked about the implications of the D.C. Circuit’s recent Blassingame v. Trump decision — about whether Trump is immune from civil lawsuits — and its discussion of the distinction between officeholder and office-seeker actions in analyzing immunity. (The leading Supreme Court case, Nixon v. Fitzgerald, had described the civil immunity of the president as being absolute for all actions within the “outer perimeter” of the president’s duties.)

In trying to get Sauer to respond to this area of questioning, Henderson at one point had to re-direct Trump’s lawyer, telling him, “I think you’re missing what I’m asking, which is that I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.”

Ultimately, the best Sauer could give was an argument that cases have distinguished legislative acts from non-legislative acts and judicial acts from non-judicial acts when considering whether review is possible and claiming that “everything alleged in the indictment is a presidential act“ — a point that Pearce later challenged.

In Pearce’s general discussion of the issue, however, the line was clearly drawn and review is possible because “compliance with the law is not a discretionary act.”

Pearce acknowledged that applying such analysis to specific elements of the indictment could lead to more complicated questions. But, he argued, a proper ruling from the D.C. Circuit here would not need to address this line of questioning at all because Trump’s argument — rejected below and on appeal — is that the case should be dismissed because he is absolutely immune from prosecution.

Affirming U.S. District Judge Tanya Chutkan’s Dec. 1 decision denying Trump’s motion to dismiss doesn’t require getting into these questions, Pearce said. This is particularly so, he argued in response to Sauer’s earlier point, given that “some substantial number of the allegations” made in the indictment “would fall outside of an ‘outer perimeter’ [of the president’s duties] and that is enough to affirm” the district court’s decision.

The panel is expected to reach its decision in short order, given the expedited timeline on which they took the appeal. Sauer, however, asked that the mandate — which would send the case back to Chutkan — be stayed if the court rules against Trump so that Trump can seek further review, both from the full D.C. Circuit and the U.S. Supreme Court.

In sum:

Guy Pearce, in 1994’s epic Australian adventure, The Adventures of Priscilla, Queen of the Desert, just because I can.