The panel of judges examining Donald Trump’s argument that he can’t be prosecuted for trying to overturn the 2020 election raised the concerns that could come if an American president is granted absolute presidential immunity.
Judge Florence Pan while listening to arguments from Donald Trump’s legal team posed this question to the former president’s lawyer: “Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six?”
The judge also asked that would the US president be still immune from prosecution if, hypothetically speaking, they sold military secrets to foreign adversaries or peddled pardons to criminals.
Trump’s lawyer John Sauer then insisted that the political process of impeachment would have to be initiated first in order to prosecute the president.
“He would have to be, and would speedily be impeached and convicted before the criminal prosecution,” Sauer said. “I asked you a yes or no question,” the judge said in response. “If he were impeached and convicted first,” Sauer replied.
“There is a political process that would have to occur under our Constitution. If there’s no impeachment ever, and no conviction, then the official acts are immune. Period,” Sauer told the three-judge panel.
He also said that without an impeachment the US Supreme Court held that a president’s official acts are never reviewable by the courts.
Trump has contended that he is immune to federal charges of conspiring to interfere in the 2020 election because his actions took place while he was president. He attended the hearing.
He was impeached by the US House of Representatives but later acquitted in US House of Senate when allegations were raised that he incited the Capitol attack on January 6, 2021.
Prosecutor assistant special counsel James Pearce weighed in and said it sets a dangerous precedent for the country’s future if US presidents could kill rivals or sell national secrets and suffer no consequences without an impeachment and conviction.
“I think that is an extraordinarily frightening future. I think if we are talking about balancing interests that should weigh extraordinarily heavily in the court’s consideration,” Pearce said.
The case could eventually reach US’ apex court where Justice Department special counsel Jack Smith has already asked for a ruling but the US Supreme Court said the appeals court should weigh in first.
Pandora’s Box
Trump’s lawyer also contended that impeachment process acts as a shield for presidents from political rivals and prosecutors second-guessing their policy decisions. “The current incumbent of the presidency is prosecuting his No. 1 political opponent and his greatest electoral threat,” Sauer said.
He said if these protections were not there, former president George W. Bush could have been prosecuted for spreading false information to justify the invasion of Iraq and even former president Barack Obama could face prosecution for authorizing drone strikes that killed civilians.
“To authorize the prosecution of a president for his official acts would open a Pandora’s box from which this nation may never recover,” Sauer further added.
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