Donald Trump attorney John Sauer promoted the idea in the DC Circuit Court of Appeals that any ruling against Donald Trump’s Presidential Immunity protections would open “floodgates,” essentially dooming all future and past presidents to prosecution.
As an example, Sauer painted a MAGA-dream scenario of a post-presidency Joe Biden being prosecuted in Texas over “mismanaging” the border. A prosecution like that, Sauer said, would be “shocking.”
Barack Obama, too, Sauer asserted, might be “potentially charged for murder for allegedly authorizing drone strikes targeting US citizens located abroad” — if Trump is not protected by immunity. Ditto George W. Bush on “false information” communicated to Congress in service of the Iraq war’s “false pretences,” Sauer suggested.
Concerned about the so-called floodgates scenario, the panel’s most senior judge, Judge Karen Henderson, asked how to write an opinion that would, presumably while denying Trump immunity, protect the office of the presidency and avoid these types of “retaliatory prosecutions of subsequent presidents.”
she asked several questions fairly clearly indicating that she is going to vote against him.
— Lee Kovarsky (@lee_kovarsky) January 9, 2024
At one point she even asked USA how to write an opinion that avoided retaliatory prosecutions of subsequent presidents.
Not that close.
More thoughts later.
/end
Assistant special counsel James Pearce delivered two main responses to the assertion that failing to grant Trump immunity opened the floodgates at all. First, it has been assumed since Richard Nixon that post-presidency criminal and civil prosecution was on the table. The floodgates, in other words, have been open since Watergate and have not resulted in retaliatory post-presidency prosecutions.
Pearce’s other argument stands on the uniqueness of the transgression Trump is accused of, indicating there must exist some recourse to prosecute the crime of subverting “the democratic republic and the electoral system.”
“Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, tried to fundamentally subvert,” Pearce said. “And frankly if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that — criminally.”
