Outside the Beltway

Trump Attorney: If Not Impeached And Convicted, President Has Power To Assasinate Political Rivals

This is the logical result of Trump’s legal arguments & that should give everyone pause

Matt Bernius
45

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The DC Circuit hearing about whether or not Presidential Immunity applies to former President Trump is underway, and it’s already produced a potent moment. Oral arguments began with the three-judge panel questioning the former President’s legal team. Here a report of the Trump team’s response to one of the judge’s questions:

[Update 1] The audio of this exchange (the hearing audio is being streamed) for this has been provided by CNN (note that the person posting this is not associated with CNN).

This is logically consistent with the theory of Presidential Immunity that the Trump team has been advancing. I also hope that everyone, regardless of political persuasion, can see the utter problem with this–especially considering the political nature of the impeachment process. I also hope that originalists can see how this contradicts the drafters of the Constitution’s thoughts about the Presidency. They had just rebelled against one monarchy–I don’t think they were keen on creating another one.

I realize we are supposed to take anything Donald Trump says figuratively and not literally. And still, even figuratively, is incredibly scary for a leading Presidential candidate, not to mention a former President, to be operating from this broad concept of Presidential Immunity. Regardless of the results of this case, I think we will be hearing about this exchange and it’s implications for months to come.

Interestingly, some of the judges’ broader questioning seems to suggest that at least two on the panel have questions about whether or not this appeal can even be brought because the Constitution doesn’t affirmatively give the President immunity from criminal prosecution and the current Supreme Court doctrine on immunity doesn’t address this issue. For more on that, I recommend yesterday’s Lawfare podcast.

[Update 2] Nicholas Grossman adds an novel twist to this line of legal reasoning:

This is actually consistent with this line of legal argumentation when taken to its extreme conclusion.

[Update 3] Example of how Fox News provides its audience with an alternative narrative:

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45 responses to “Trump Attorney: If Not Impeached And Convicted, President Has Power To Assasinate Political Rivals”

  1. Kathy Avatar
    Kathy

    I think if Biden had Der Kleine fuhrer killed, he wouldn’t be convicted in the Senate.

    We could perform some practical history and do that experiment.

    3
  2. Daryl Avatar
    Daryl

    I have no doubt that Trump’s argument will fail…but imagine this country if it were to win???

    1
  3. Gavin Avatar
    Gavin

    Don’t be silly, these legal lightweights hadn’t considered the possibility that Biden would strike first. Liberals are all squishes, dontchaknow!

    1
  4. CSK Avatar
    CSK

    @Gavin:

    Yes. It occurred to me that this gives Biden the power to assassinate Trump.

    2
  5. Kurtz Avatar
    Kurtz

    This is a natural result of rhetoric centered on the idea that ‘the Left’ is destroying America.

    I’m not at as much risk from the RW turn as many posters here, so let me say that the following statement reflects an amount of privilege. For me, the most irritating thing about MAGA is that it has forced me to defend the status quo political economy that only has to feign commitment to liberty.

    But how the hell does one push for something better when a former President’s lawyers are making these arguments with a straight face and at least 50 million people are nodding along in agreement and another big portion of the country gives tacit consent?

    16
  6. Matt Bernius Avatar
    Matt Bernius

    @Kurtz:
    Totally agree.

    Also, countdown to “Sure, the leading candidate for the Republican nomination for President is making a scary argument, but those radical leftist college students and activists are equally, if not more, dangerous!!!” argument from a certain commenter…

    15
  7. DMA Avatar
    DMA

    I wasn’t alive during Watergate. But I read James Michener’s novel Chesapeake, in which (near the end of the very long book) one of the characters was convicted and imprisoned for Watergate crimes. The character’s motivation for his crimes was that the Republicans had to break the law to save America from the hippies, blacks, feminists, etc… Assuming that’s an accurate characterization of the times, I guess some things never change.

    9
  8. Mikey Avatar
    Mikey

    @Daryl:

    I have no doubt that Trump’s argument will fail…but imagine this country if it were to win???

    Trump’s supporters are imagining it…and they are smiling.

    3
  9. gVOR10 Avatar
    gVOR10

    On the one hand it’s hard to believe the attorney said this. On the other hand it’s hard to see how he could have avoided it. But I suppose in Originalist lala land impeachment conviction by the Senate is still a real thing. And broad immunity is consistent with their whole Unitary Executive thing.

    The Academy Awards are coming up.Is there a category for attorney keeping a straight face while saying the most absurd shit?

    3
  10. Matt Bernius Avatar
    Matt Bernius

    @DMA:

    Assuming that’s an accurate characterization of the times, I guess some things never change.

    Other than the fact that Nixon was a Republican and it was assumed by everyone, including Nixon, that his own party were going to support his impeachment and conviction.

    That definitely changed.

    6
  11. Steven L. Taylor Avatar
    Steven L. Taylor

    Since we all know that impeachment and conviction are nearly impossible to achieve, this is basically an argument for unlimited power for the presidency.

    So much for limited government.

    24
  12. Steven L. Taylor Avatar
    Steven L. Taylor

    @gVOR10:

    But I suppose in Originalist lala land impeachment conviction by the Senate is still a real thing. And broad immunity is consistent with their whole Unitary Executive thing.

    Actually, it isn’t.

    The impeachment clause is clear that an official can be tried in court. Trump’s lawyers are trying ot create a weird negative: that if an official isn’t removed, then they can’t be tried. It is truly absurd and not originalist in the least. (Or logical).

    5
  13. CSK Avatar
    CSK

    @Steven L. Taylor:

    Well, unlimited power for Trump as president.

    5
  14. Beth Avatar
    Beth

    I realize we are supposed to take anything Donald Trump says figuratively and not literally.

    Federal Rule 11(b) says:

    (b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

    (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

    (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

    (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

    (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

    His attorneys, on pain of huge sanction, are literally saying this and we should take this seriously. It is INSANE that an attorney would make this argument. It is absolutely insane that a major figure of a political party would make this argument. We are fucking doomed.

    10
  15. reid Avatar
    reid

    @Beth: And people like to claim that our institutions are strong and impregnable, but it would only take a handful of judges in the right places to legitimize and codify these beliefs. It’s not actually clear that the current Supreme Court makeup isn’t dangerously close to that point (Thomas, Alito). Frightening how corrupted the system has become and how much worse it would be in a second Trump admin.

    7
  16. PoliticalBiker Avatar
    PoliticalBiker

    @Kathy:
    I came here to post the same thing: obviously Trump’s attorneys are arguing that Biden can have Seal Team 6 assassinate the Orange Menace.

    5
  17. Bill Jempty Avatar
    Bill Jempty

    Trump being at today’s hearing has me remembering a short lived tv series, First Monday. In its pilot episode a case was argued before the Supremes and the litigant was in court.

    I only watched the pilot episode, and like Boston Legal’s first, I found it laughably bad and watched it no further.

  18. Kurtz Avatar
    Kurtz

    @Steven L. Taylor:

    The impeachment clause is clear that an official can be tried in court. Trump’s lawyers are trying ot create a weird negative: that if an official isn’t removed, then they can’t be tried. It is truly absurd and not originalist in the least. (Or logical).

    I listened to the Lawfare podcast Bernius posted yesterday. That argument is patently silly.

    I’m a lay person, so I say this knowing I may annoy @Roger or @SKI, but it seems to me that interpreting the impeachment clause this way confers pardon power to the Senate in the case of Presidents. Not to mention that it opens the door to a free-for-all during the lame duck period between election and inauguration of successor.

    On another note, Sauer’s brief lists a bunch of loose, informal accusations of criminal behavior during prior administrations. I laughed out loud at the following passage.

    American history contains many such
    examples—President Reagan’s alleged involvement in Iran-Contra, President
    Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass
    destruction,” President Nixon’s firing of Archibald Cox, etc. None of the above conduct was prosecuted.

    Lovely omission of the fact that Ford issued a “full, free, and absolute pardon” of Nixon’s conduct while in office. So, no shit, Nixon wasn’t prosecuted.

    If we are accepting negative inferences, then that torpedoes their reasoning, because the decision to issue a controversial pardon of a preceding co-partisan would never even be caused considered if the President enjoys such broad immunity.

    Steven, have you read the filing? I’m curious about the use of Federalist Nos. 65, 69, and 77.

    Link to Courtlistener PDF of Apellant Reply Brief.

    I’m mostly interested in the latter 2. It’s been too long since I read those documents. For ease of reference, I’m curious about pages 14-16 of the brief.

    2
  19. just nutha Avatar
    just nutha

    @Steven L. Taylor: Again though, the advocates of “limited government” are only interested in limiting your ability to govern, not their own.

    13
  20. Gustopher Avatar
    Gustopher

    Given how quickly everyone else jumps to the “So that means Biden could assassinate Trump” argument, I’m a little surprised the judge didn’t ask that as a follow up. Perhaps he has near super-human self-restraint, and had decided that this was exactly as cheeky as he was willing to be.

    3
  21. Kurtz Avatar
    Kurtz

    @Beth:

    I was browsing the filings on CL, and was a little bothered, but not surprised, that there are amicus briefs* filed in support of Trump’s position. I started to read one of them, but decided life is hard enough without digging into that.

    *Not including Calabresi’s brief re: The Appointments Clause that he evidently will file at ever opportunity for the rest of his life. I bet he has a boilerplate Word doc on his computer ready to go.

    3
  22. MarkedMan Avatar
    MarkedMan

    @Gustopher: Seriously though, the more germane question would be could a President be prosecuted for ordering the execution of any Senators who seem likely to vote for impeachment or even to bring articles of impeachment. Absolute monarch, but in a specific, weird, bloody way

    2
  23. Beth Avatar
    Beth

    @reid:

    I’m wondering if that question was specifically asked to force Roberts to acknowledge it. I think Roberts is very much a hack, but he’s nothing compared to Thomas and Alito. I think its safe to say that Thomas and Alito will rule that Republican Presidents can do what they want, but that Democrats should not under any circumstances be president.

    I think this question is actually asking John Roberts if he wants to go down in history as the guy who destroyed the United States by installing a permanent dictator in office.

    11
  24. Matt Bernius Avatar
    Matt Bernius

    @Kurtz:

    Lovely omission of the fact that Ford issued a “full, free, and absolute pardon” of Nixon’s conduct while in office. So, no shit, Nixon wasn’t prosecuted.

    Their filings do reference it–strangely, they used it as evidence of Presidential Immunity. It’s one of the many reasons why few legal experts think they are going to be successful.

    @Gustopher:

    I’m a little surprised the judge didn’t ask that as a follow up. Perhaps he has near super-human self-restraint, and had decided that this was exactly as cheeky as he was willing to be.

    In this case, it was she–this was a panel of all female judges. You also don’t get onto the Court of Appeals if you don’t have incredible self-restraint. Nor, in most cases, the District level.

    2
  25. TheRyGuy Avatar
    TheRyGuy

    It’s always refreshing to come here and be reminded that the guy who has been lied about, spied on, censored, had his business interests attacked, is facing multiple criminal prosecutions, and has been arbitrarily removed from the ballot by his political opponents…is the REAL threat to our democracy.

    Can’t wait to see the comments when Trump wins an Electoral College and popular vote victory in November and the Democrats try to prevent him from becoming President anyway.

    1
  26. Matt Bernius Avatar
    Matt Bernius

    @TheRyGuy:
    It’s always refreshing to see how deeply you have drunk the flavored and will excuse any behavior from Donald Trump (who already lost a Presidential election) because you have so much anger about the rest of us caring about checks and balances and the rule of law.

    arbitrarily removed from the ballot by his political opponents

    Having hearings and releasing explanatory documents that ground the decision in existing law is the opposite of arbitrarily removing people.

    BTW, what do you think of Trump starting to circulate Birther’s arguments about taking Nikki Haily off of primary ballots?

    Can’t wait to see the comments when Trump wins an Electoral College and popular vote victory in November and the Democrats try to prevent him from becoming President anyway.

    You seem to indicate you think this is a bad thing. Let me tell you about the 2020 election (you know, the one Donald Trump lost), and the guy you are supporting (you know the one who lost the last election and then tried to do exactly what you are speculating about). Or is this another case where every accusation is a confession?

    Either way, this is getting really low energy and sad.

    18
  27. inhumans99 Avatar
    inhumans99

    @TheRyGuy:

    You acknowledge that your guy is most likely a criminal and yet you are so casual in not caring about that at all.

    Democrats, Liberals, and Progressives oftentimes get ridiculed for engaging in wish casting, however, your post seems to be a prime example of wish casting.

    If your post was intended to rattle the folks on this site, well, good luck with that. In fact, this post of yours tells me you are much more rattled by the predicament that Trump finds himself in than I am. Interesting.

    11
  28. Michael Reynolds Avatar
    Michael Reynolds

    @TheRyGuy:
    You will no doubt be surprised to learn that the Constitution has more provisions beyond the second half of the 2d amendment. Your boy is a criminal. Full stop. A criminal. Specifically a fraud, an insurrectionist, a tax cheat and a rapist. And now the law is catching up to him.

    Next time maybe think twice before following your rage and inferiority complex into worshiping the golden calf with a full diaper.

    18
  29. DK Avatar
    DK

    @Beth:

    I think its safe to say that Thomas and Alito will rule that Republican Presidents can do what they want, but that Democrats should not under any circumstances be president.

    No doubt their law clerks are already tryna figure out how to make this textualist or originalist or something.

    Maybe they’ll make it all up a la Dobbs.

    3
  30. DK Avatar
    DK

    @TheRyGuy: If turns you on lying sore loser Trump has publicly admitted wanting sex with his own daughter — and that he declared he’d be a dictator on day one — just say so.

    7
  31. MarkedMan Avatar
    MarkedMan

    Trump’s lawyer:

    Sauer later argued the threat of prosecution could have a chilling effect on future presidents’ decisions, saying they would need to look over their shoulder and ask, “Am I going to jail for this?” when making controversial decisions.

    Yes. Yes. Presidents, just like everyone else, should be asking themselves, “Am I committing a crime?”

    13
  32. Mister Bluster Avatar
    Mister Bluster

    …the Democrats try to prevent him from becoming President anyway.

    Looks like your boyfriend Trump set the precedent for this on January 6, 2021 with this message:

    Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!

    Whatever are you whining about?

    8
  33. Beth Avatar
    Beth

    @Matt Bernius:

    You also don’t get onto the Court of Appeals if you don’t have incredible self-restraint. Nor, in most cases, the District level.

    https://giphy.com/gifs/netflix-i-think-you-should-leave-tim-robinson-itysl-bjB3gtFvREqqr5NAHW

  34. Kurtz Avatar
    Kurtz

    @Matt Bernius:

    I know they mention it.

    The government relies on President Ford’s pardon of President Nixon,
    Resp.Br.37-39, but that pardon applied to private conduct. See App.Br.27-28 & n.4.

    The referenced argument from the opening brief:

    The district court misapprehends both the historical and legal context of those analyses. In 1973 and 2000, questions arose about whether a sitting President might be criminally charged for acts that included private conduct—i.e., President Nixon’s alleged involvement in a range of potentially criminal private conduct

    [note 4]

    See, e.g., The Legal Aftermath: Citizen Nixon and the Law, Time (Aug. 19, 1974),
    at https://content.time.com/time/subscriber/article/0,33009,942980-2,00.html
    (noting that, upon leaving office, President Nixon faced possible criminal charges
    for “subornation of perjury, tax fraud, misprision of a felony, [and] misuse of
    Government funds for his private home”) (“Legal Aftermath”).

    Document Cloud link

    I’m struck by the change between the brief for the District Court and the brief submitted to the Circuit Court.

    The earlier brief used the phrase “including private conduct” whereas the later filing argues the pardon “applied to private conduct”.

    First, the initial filing doesn’t even make a claim that the potential charges against Nixon were exclusive to his private conduct while in office. Rather, using their own negative inference reasoning, it implies that he may indeed have faced charges for official actions. Indeed, if Nixon did face charges for misappropriation of government funds, it seems that he derived private benefit via some sort of official act.

    Second, and more importantly, is the shift in the later brief to Ford’s pardon from the speculation based on Time’s contemporary reporting on something that had yet to occur. Sure, they provide the reference point, but if it was anything other than weak tea, I would think they would hammer it hard.

    And the worst part:

    Now, THEREFORE, I, GERALD R. FORD, President of the United States, pursuant to the pardon power conferred upon me by Article II, Section 2, of the Constitution, have granted and by these presents do grant a full, free, and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during the period from January 20, 1969 through August 9,1974.

    Am I missing something, or does “full, free, and absolute” actually mean “limited to private conduct”?

    If this is how law schools teach logic, analysis, and argumentation, they are overcharging more than I thought.

    1
  35. Kathy Avatar
    Kathy

    You know, it’s really hard to resort to reductio ad absurdum, when the Orange Ass’s own lawyers open straight to absurdum.

    3
  36. DrDaveT Avatar
    DrDaveT

    Man, the projection is strong today.

    I’m genuinely curious to know what the heck RyGuy thinks he’s talking about when he says:

    the guy who has been lied about

    Trump is the source of lies, not the sink. What lies does RG think have been told about him? (Or is this one of those “words don’t mean things, they just emote” statements, like Trump threating to round up the fascists?)

    spied on

    ???

    censored

    ????? If he’d been censored, how would RG know? What has Trump said that was suppressed?

    had his business interests attacked

    Only in the sense that Al Capone had his business interests “attacked”, I suppose. What particular attacks does RG have in mind?

    The rest of his Breitbart talking points were self-explanatory, but those have me stumped.

    7
  37. gVOR10 Avatar
    gVOR10

    @Kurtz:

    If this is how law schools teach logic, analysis, and argumentation, they are overcharging more than I thought.

    Whatever ethical codes may say, legal practice teaches that you’re hired by a side and you do whatever you can to fight for your side. Truth and justice are somebody else’s problem, maybe the court’s, maybe no one’s. The preponderance of lawyers in politics is one reason we’re so polarized.

    2
  38. Kurtz Avatar
    Kurtz

    @gVOR10:

    Yes. I know. Some of their arguments are better than the ones I highlighted. It’s not so much that their entire filing is that weak. It’s that the presence of the weaker arguments seems to undercut the ones that are built upon something closer to solid foundation.

    But at times, some of Trump’s lawyers (and maybe that one doctor) appear to have adopted some of his rhetorical style. So I sometimes wonder if his team has let their idiot client make them idiots.

    3
  39. DaveD Avatar
    DaveD

    While I think this whole legal argument is completely flawed, just down to its very core. When Obama assassinated al-Awalki via drone strike this is the logical outcome of an imperial president. When the targeted murder of a US citizen abroad which trump then used during his term is given clearance by the OLC, where does it end?

    3
  40. Kurtz Avatar
    Kurtz

    @DrDaveT:

    If my memory serves, the ‘spied on’ claim stems from FISA warrants during the ’16 campaign.

    I think Trump also made outlandish claims about it in subsequent years. But at some point, so much shit got flooded into the zone, who can remember it all?

    5
  41. RWB Avatar
    RWB

    @TheRyGuy:

    Trump Taj-Mahal 2024

    1
  42. Scott O Avatar
    Scott O

    @DrDaveT: “
    I’m genuinely curious to know what the heck RyGuy thinks he’s talking”

    I think RyGuy and about 30% or more of the voting population would say something like this:

    “ the guy who has been lied about” Russia, Russia, Russia. Pee tape.

    “ spied on” Something something Carter Page. Trump says he was spied on so it’s gospel.

    “ censored” Taken off twitter. Matt Taibbi‘s “big reveal”.

    I used to feel these kind of beliefs humorous because I thought they were fringe views. Now I think these beliefs are practically mainstream amongst Republicans.

    5
  43. Ken_L Avatar
    Ken_L

    It wouldn’t be necessary to assassinate senators in order to secure an acquittal after impeachment by the House. Hitler got the Reichstag to do his bidding by simply banning the Communist Party so their deputies couldn’t vote, and then having presiding officer Goering allow lots of SA thugs into the chamber to intimidate the deputies while they were voting. “Moderates” gulped and said sure, giving the Chancellor emergency powers to rule by decree was OK with them.

    Senate President Lake/Vance/Noem/Carlson would, I’m sure, be happy to permit a few hundred Proud Boys with AR-15s into the gallery to observe the Senate vote on impeachment. Maybe Bernie Sanders and Elizabeth Warren could be roughed up a bit in the morning, just enough to have to spend a few days in the ICU. Republican senators would surely find the evidence President Trump had Gavin Newsom murdered quite unconvincing.

    2
  44. Ken_L Avatar
    Ken_L

    @Scott O:

    Now I think these beliefs are practically mainstream amongst Republicans.

    Trump, Fox and the entire Trump Republican propaganda machine have been spewing them for years. It would be surprising if they weren’t received wisdom on the right.

    2
  45. Jay L Gischer Avatar
    Jay L Gischer

    @TheRyGuy: I take it from your post that you are intending on voting for Donald J. Trump for president in this cycle.

    You haven’t weighed in on absolute immunity, but maybe you’re fine with that, too.

    You don’t, as I recall, have much of a problem with 1/6 and what happened then.

    That makes you an enemy of America and everything it stands for.

    You.

    Personally.

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