The 3-judge panel at the DC Circuit Court of Appeals — J. Michelle Childs, Florence Pan, and Karen LeCraft Henderson — had to consider three wild ways a President such as Donald Trump could evade prosecution under scope of immunity being requested by Trump’s attorney John Sauer.
In answering a question about whether a President could be tried and convicted for ordering “Seal Team 6” to assassinate a political opponent, Sauer made headlines by offering only what he called a “qualified” yes.
That qualification? Sauer asserted that such a prosecution could only legitimately take place if the President had been first impeached and convicted by the Senate. Putting aside whether that is true — or even considering that it might be — hypotheticals were introduced that made Sauer’s assertion absurd in practice, if not in theory.
Former U.S. Attorney Joyce Vance emphasized few of the wild scenarios as she considered Sauer’s arguments and Special Counsel attorney James Pearce’s responses. Saying that Sauer “ran into still more trouble as the hypotheticals played out,” Vance revealed three egregious ways of eluding justice granted by Sauer’s impeachment/conviction premise:
- a president who resigns to avoid conviction
- a president succeeds in concealing criminal conduct until he leaves office so he is never impeached
- a president who orders the deaths of his opponents in the Senate to prevent conviction.
“Under Trump’s theory of immunity,” Vance writes, “no prosecution would be available in these cases.”
One related result of Sauer’s impeachment/conviction argument was that in questioning Sauer about Presidential Immunity, Judge Pan got the attorney “to concede that presidents can be criminally prosecuted for official acts, because he’s conceded impeachment and conviction in senate can trigger right to prosecute,” as lawyer Lee Kovarsky asserts below.
Pan gets Sauer to concede that presidents can be criminally prosecuted for official acts, because he's conceded impeachment and conviction in senate can trigger right to prosecute.
— Lee Kovarsky (@lee_kovarsky) January 9, 2024
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