More Lunatic Legal Coverage

Reporters keep plunging to bizarre new lows in coverage of Donald Trump. The new jam: his lawyer argued presidents can assassinate rivals. Except he didn’t, at all.

Trump’s “election interference” criminal case is on hold, pending an appeal heard by a trio of judges this week. Citing a traditional interpretation of Article II of the Constitution, the former president is asserting he must be impeached and convicted in the Senate before he can be criminally tried for any official act.

MSNBC, in an article by former New York County prosecutor Jordan Rubin, unsuprisingly panned the claim in, “Trump’s immunity argument highlights the absurdity of his position.” The relatively restrained Rubin wrote:

Donald Trump didn’t have a strong chance of winning his immunity claim heading into oral arguments Tuesday in Washington, and the argument itself showed why… Judge Florence Pan pointed out that, under Trump’s theory, a president could order SEAL Team Six to murder the president’s political rivals and, so long as they’re not convicted in an impeachment trial, they’re off the hook.

That’s not really Trump’s argument highlighting the absurdity of anything, and more like Judge Pan’s doing so, but whatever. Rubin also said Trump is a good bet to lose his argument, adding, “Trump lawyer John Sauer asked the panel to pause any decision against the former president” while “he challenges it on higher appeal.”

I take no position on the strength or lack thereof of Trump’s immunity claim, but I’ve seen Sauer in court, in the Missouri v. Biden case. This attorney is an oral argument specialist, in the way Vince Carter stood out a bit as a dunker. So, the idea of him posterized in court was an eyebrow-raiser.

Even more incredible was a parade of reports appearing to claim Trump himself argued the “SEAL Team Six” idea. “Sen. Schatz warns of ‘new turn’ for Trump with ‘Seal Team 6’ claim,” was the header for a Chris Hayes interview of Hawaii Senator Brian Schatz. Schatz said it was “one thing” when Trump was “essentially engaging in stochastic terrorism,” but here “the official position of Trump’s lawyers is going to be that he could order a murder of his political rivals using SEAL Team 6.”

Wow. Really? Yes, according to Newsweek, which wrote in its opening paragraph:

Democratic Senator Brian Schatz has claimed “American democracy is at stake” in the upcoming presidential election after Donald Trump’s attorney argued presidential immunity would extend to political assassinations during a Washington, D.C. court case.

There’s a long list of similar headlines. The Hill: “Trump team argues assassination of rivals is covered by presidential immunity.” Mediaite: “Trump Lawyer Argues Presidents CAN Order Seal Team 6 To Assassinate Rivals In Stunning Appeals Courtroom Exchange.” The Bulwark, semi-humorously: “Trump’s Lawyers Argue Biden Can Assassinate Him.”

Maryland’s Jamie Raskin, gaining fast in the always-heated race for a rep as the dumbest current member of congress, fretted to fellow gentleman-scholar Wolf Blitzer on CNN:

As a member of Congress, my first thought was, well, then if the president is going to order out for the assassination of his political rivals, and say there’s a narrow margin in the Senate of a two or three vote in the opposition party, what’s to keep him from murdering members of the Senate to make sure that he doesn’t get convicted there in order to deny a two-thirds majority?

This must have been some argument, I thought. Curious, I pulled the docket. Here’s the actual blow-by-blow, beginning with a question from Judge Pan, who replaced Ketanji Brown Jackson on the D.C. Court of Appeals.

Judge Pan actually wanted this discussion to be about selling pardons at first, beginning with a query about the “cumbersome” process of impeachment and conviction in the Senate:

PAN: So it seems to me that there are a lot of things that might not go through that process because it’s quite a cumbersome process that requires the action of a whole branch of government that has a lot of different people involved and so in your view, could a president sell pardons or sell military secrets? Those are official acts, right?

Sauer jumped in response:

SAUER: 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 pardon of Marc Rich, and the US DOJ, carefully, 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 can be prosecuted for his official acts.

It’s true the DOJ declined to prosecute the malodorous pardon of commodities mogul Marc Rich, which came after a $450,000 donation to the Clinton Library by Denise Rich. However, the FBI investigated for years, so constitutional immunity clearly didn’t scare them much. Still, Andrew McCarthy, a federal prosecutor then, did just write National Review column saying the DOJ decided not to cross a “Rubicon” of prosecuting an ex-president for actions “within his constitutional warrant.” Worse, Sauer mentioned this in a brief sent to Pan seven days before this exchange.

No matter how contemptuous he or she might be of an argument, it’s a little embarrassing for a judge to drive face-first into a lawyer’s cite at the outset of a hearing. Only after that happened did Pan move to the “SEAL Team Six” gambit:

PAN: Could a president order SEAL team six to assassinate a political rival? That’s an official act.

SAUER: He would have to be, and would speedily be, impeached and convicted before the criminal prosecution.

PAN: But if he weren’t, there would be no criminal prosecution, no criminal liability for that?

Sauer tried to detour into a discussion of the framers’ concerns, but Pan was determined:

PAN: I asked you a yes-or-no question: could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached… Would he be subject to criminal prosecution?

Could an elephant cross the Grand Canyon on a bridge made of Juicy Fruit? No, the elephant would fall through. But if he didn’t?

PAN: So your answer is no.

SAUER: My answer is qualified, “Yes.” There is a political process that have to occur under us the structure of our constitution, which would require impeachment and conviction by the Senate in these exceptional cases…

Pan kept trying to get Sauer to admit he was walking that elephant across the Grand Canyon, and Sauer kept denying it, arguing that there’s a specific procedure for prosecuting presidents, as a remedy against misuse of criminal courts for political purposes. At no time did he endorse the idea of presidents assassinating anyone. He even went so far as to cite an OLC memo from the Department of Justice saying “you’d expect a speedy impeachment and conviction” in such an exceptional case.

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