ANALYSIS – Well, according to the media that is what former President Donald Trump's lawyers are saying. In a bizarre exchange in court, Trump attorney John Sauer argued that, under certain circumstances, a president could order SEAL Team Six (more accurately known as DevGru) to assassinate a domestic political rival and not face prosecution.
But the scenario is silly and the truth is a bit more complicated.
While no president is supposed to be above the law. And no president has absolute immunity or can commit crimes with impunity (the ability to act without negative consequences), no former president has ever been indicted before in our nation's history, either.
Why? Because the Founding Fathers were far more concerned about presidents facing politicalized persecutions masquerading as criminal prosecutions, than with them getting away with murder.
What Trump's lawyers are arguing is that a president has presidential immunity (freedom from prosecution) for any conduct done as “official acts” while he is president. In order to criminally prosecute a president, he must first be impeached and convicted by Congress.
In this view of the Constitution, that political action is what removes his presidential immunity. As Business Insider noted flippantly in its headline: “President can have rival assassinated if Congress is OK with it.”
It's a silly example. But it makes headlines, and that's why the judge brought it.
During questioning from Judge Florence Pan, nominated by Biden in 2022, and one member of the three-judge panel from the D.C. Court of Appeals hearing Trump's case, one hypothetical scenario was raised about a president assassinating a rival as an official act ordering our Tier One SEALs to do it.
Of course, this deliberately absurd scenario ignores the fact that no American military unit or personnel would obey that clearly unlawful order. We are all duty, and legally, bound to ignore or refuse unlawful orders.
But Judge Pan asked anyway: “Could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution.”
To which Sauer replied: “If he were impeached and convicted first.” Judge Pan then said: “So your answer is no.” Sauer repeated his point by saying: “My answer is qualified. Yes. There's a political process that will have to occur under the structure of our Constitution, which would require impeachment and conviction by the Senate in these exceptional cases…”
This elicited a shocked response from opposing counsel, reported the New York Post: “What kind of world are we living in” if a president could use the state to assassinate a political rival and not be prosecuted for it, asked assistant special counsel James Pearce.
Pearce, arguing on behalf of special counsel Jack Smith, added that it would be a “frightening future” if a president couldn't be held accountable for crimes and said the sweeping presidential immunity that Sauer was suggesting would put a commander-in-chief “above the law.”
But Sauer fired back later, saying: “The frightening future [Pearce] alleges where presidents are very, very, seldom, if ever, prosecuted because they have to be impeached and convicted first is the one we have lived under for the last 235 years.”
“That's not a frightening future. That's our republic.”
Sauer then made the more important constitutional point that the founders were much more worried political opponents using criminal prosecution to discipline presidents.
He added:
They were much more concerned about the abuse of the criminal process for political purposes, to disable the presidency from factions and political opponents. And, of course, that's exactly what we see in this case.
Using a more realistic scenario of a president selling pardons, which Judge Pan also brought up, Sauer said:
…the sale of pardons example is an excellent example, because there were allegations about a sale of a pardon, essentially, when it came to President Clinton's, uh, pardon of Marc Rich and the US DOJ, carefully and for the very reasons we've emphasized in our brief, decided not to prosecute President Clinton with that because it raised concerns about whether or not a president could be prosecuted for his official acts…
Perhaps these judges, and the media should focus on these more realistic scenarios, and try to better understand the founders' intent, rather than make up nonsense about a president openly and “officially” killing his rival and getting away with it.
The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.
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