We all remember how it went down. During oral argument on Donald 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?”
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 to the SEAL Team Six question, on Trump’s behalf, is wrong, reckless, and self-defeating. It’s also entirely unnecessary to the argument he needed to make and to how the Supreme Court will likely 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, any day now, the Supreme Court rules on criminal immunity, 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.
By adopting 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, Trump’s team played itself into this corner. They conjured this wild position, briefed it in their papers, and stuck with it at oral arguments in both the Court of Appeals and the Supreme Court. It’s an obvious loser and, worse yet, 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 a part of the president’s duties.
Third Degree With Elie Honig
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This is precisely the standard adopted by the Supreme Court itself over 40 years ago in the case that established civil immunity, Nixon v. Fitzgerald: “we 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 that 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 sensibly have argued, “is to adopt the same criminal-immunity rule 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 may rule on the spot that Trump’s argument fails under the scope-of-the-job test (which would open the door for a preelection trial), or the justices may 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 pulling the levers of power to try to steal an election falls outside the scope of his job.
This article originally appeared in the free CAFE Brief newsletter. You can find more analysis of law and politics from Elie Honig, Preet Bharara, Joyce Vance, and other CAFE contributors at CAFE.com
