“Could a President order SEAL Team 6 to assassinate a political rival?” Judge Florence Pan, of the U.S. Court of Appeals for the D.C. Circuit, asked D. John Sauer, a lawyer for Donald Trump, in oral arguments on Tuesday. It was a remarkable question for a remarkable political moment, and one that has been a long time coming. Pan was one of three judges on an appeals panel hearing Trump’s argument—which seemed, in varying degrees, to appall them—that the case brought against him by the special counsel, Jack Smith, related to Trump’s actions in the run-up to the assault on the Capitol on January 6, 2021, should be thrown out. Trump contends that, in the absence of an impeachment conviction, he is absolutely immune from prosecution for acts related to his official duties as President. Hence Pan’s question about an assassination. “That’s an official act, an order to SEAL Team 6,” she pointed out.
Sauer stalled and tried to qualify his answer by saying that such a President would need to be, and indeed “would speedily be,” impeached. Pan interrupted to say that that was more easily said than done. “I asked you a yes-or-no question,” she tried again. “Could a President who ordered SEAL Team 6 to assassinate a political rival, who was not impeached—would he be subject to criminal prosecution?”
“If he were impeached and convicted first,” Sauer said.
“So your answer is no,” Pan said.
As everyone in the courtroom knew, Trump was impeached (for the second time) by the House of Representatives after January 6th, but was then acquitted in his Senate trial. Trump is not quite arguing (at least his team wasn’t doing so at this hearing) that his acquittal means that he should be spared further proceedings because of double jeopardy; it is more like double-or-nothing jeopardy, with an impeachment conviction required before a criminal one can proceed. By the Trump team’s standard, a prosecution couldn’t go forward even if, as Pan put it, the purpose of the official action was “unlawful or unconstitutional.” What Pan wanted to know was whether Trump was arguing that “there would be no criminal prosecution, no liability” for him, or for any President, who acted like an outright gangster but managed to get out of office before being impeached and convicted.
Also jarring was what another of the three judges, Karen Henderson, called a “paradoxical” aspect of the Trump argument. His lawyers have argued that his attempts to get the results of the 2020 Presidential election overturned were related to his Presidential duty to “take care that the laws are faithfully executed”—because he was accusing Joe Biden and his campaign of breaking election laws. How could it be, Henderson said, that the duty to execute the law itself “allows him to violate criminal laws?”
Henderson and Pan pointed out another paradox: during Trump’s impeachment trial, some Republican senators argued that they were comfortable voting to acquit because he would be susceptible to criminal prosecution later, which they contended was the more appropriate means of holding an outgoing President accountable. As Pan summed up that logic, “There’s no need to vote for impeachment because we have this backstop, which is criminal prosecution. And it seems that many senators relied on that in voting to quit.” Sauer’s reply, basically, was to suggest that one could never know why senators do what they do—and also that that was then, and this is now.
Much of the problem here, of course, is Trump: how far afield of the law he allegedly went as President, and how much further he might go if elected again. Trump was in the courtroom for the oral arguments and afterward claimed that “by normal standards, if it weren’t me,” he would have already won the case. He then turned his attention to a legal filing by one of his co-defendants in the RICO case brought against him in Georgia, on charges related to the 2020 election, which alleges that the prosecutor, Fani Willis, has an improper personal relationship that compromises the case, with a private lawyer contracted to work with her team. Willis’s office has told reporters that it will respond in legal filings. He called her the real criminal. (Trump is also, separately, seeking Presidential immunity in the Georgia case. There are two other criminal cases against him—for falsifying records in relation to hush-money payments and for keeping documents marked classified at his Mar-a-Lago home, in violation of the Espionage Act—but neither centers on his official acts as President. He has denied all wrongdoing.)
But, in another way, the country has been headed toward this case for years, Trump or no Trump. Indeed, what might be the most disturbing aspect of the oral arguments is how unsettled the law actually is in the area of Presidential powers and accountability—which is a reason that this case will likely ultimately be decided by the Supreme Court. (Smith had asked the Supreme Court to take the case directly, bypassing the Court of Appeals; the Justices declined, but the case is on an expedited fast-track to them, anyway.) Trump’s lawyer was able to cite precedents, notably Nixon v. Fitzgerald, that immunized the President from civil liability for actions within the “outer perimeter” of his official duties. The Supreme Court has not clearly ruled on a former President’s criminal liability, though—or, for that matter, on what might count as an official act in that context. Sauer raised the possibility of a prosecutor going after George W. Bush for giving Congress false information in the lead-up to the invasion of Iraq, and then added, “Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens living abroad?”
Sauer was referring, apparently, to the death of Anwar al-Awlaki (also spelled Aulaqi), a forty-year-old American citizen (born in New Mexico) who was killed in a U.S. drone strike on Yemen, in 2011. Al-Awlaki was known as an Al Qaeda propagandist, and the Obama Administration claimed to have secret information showing that he was a threat, but he was never indicted, let alone tried. Before al-Awlaki was killed, it had become known through press reports that he was on an Administration “kill list” of pre-authorized targets, and his father filed suit in a U.S. district court, also in D.C., in an attempt to get his son off that list. (Anwar’s own son, the elder man’s grandson, a sixteen-year-old boy who was born in Colorado, was killed in another drone strike soon afterward, though it was not clear whether he was a target or just in the wrong place; a daughter was also killed in a raid in Yemen in 2017.) I wrote a number of pieces about al-Awlaki at the time, wondering, as others did, what legal standard would differentiate his planned killing from that of an American citizen living in London whom an Administration considered dangerous. There’s still no clear answer: the elder al-Awlaki’s case was dismissed for lack of standing, basically because he wasn’t the one on the kill list, and subsequent litigation failed to resolve the legal issues fully.
During the oral arguments, James Pearce, the lawyer representing Smith’s office, notably talked about such decisions being made under a time pressure too great for the “cadre of lawyers” around the President to keep up with. If there were a drone strike in which civilians were killed “that theoretically could be subject to some sort of prosecution as murder,” Pearce said, “I think that might be the kind of place in which the court would properly recognize some kind of immunity.” That answer might benefit from additional jurisprudential reflection—and not only because Sauer, Trump’s lawyer, seized on it while speaking to reporters after the arguments.