46 min(s) ago
In his opening arguments before the Supreme Court, John Sauer, attorney for former President Donald Trump contended that prosecuting a president for official acts while in office is “incompatible” with the U.S. Constitution.
“Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure,” Sauer argued before the high court.
“The implications of the court's decision here extend far beyond the facts of this case,” Sauer argued to the justices, before presenting a list of hypothetical scenarios for consideration.
“Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?" he questioned.
"The answer to all these questions is no,” Sauer said
The Supreme Court (Getty Images)
An attorney for former President Trump argued in the Supreme court that a president who ordered the U.S. military to conduct a coup would need to be impeached before he could be prosecuted.
Attorney John Sauer made the argument during a discussion with Justice Elena Kagan on Thursday. The court is debating Trump's presidential immunity claim in his election interference case.
Kagan adopted a hypothetical in which the president who ordered the coup "is no longer president."
"He couldn't be impeached. But but he ordered the military to stage a coup," Kagan said, pressing Sauer to say whether that would constitute an "official act" granting the president immunity under his argument.
"I think it would depend on the circumstances, whether it was an official act, If it were an official act, again, he would have to be impeached," Sauer responded.
"What does that mean? Depend on the circumstances? He was the president. He is the commander in chief. He talks to his generals all the time. And he told the generals, 'I don't feel like leaving office. I want to stage a coup.' Is that immune?" Kagan pressed.
"If it's an official act, there needs to be impeachment and conviction beforehand," Sauer repeated.
"That answers sounds to me as though it's like, yeah, under my test it's an official act. But that sure sounds bad, doesn't it?" Kagan said.
"The framers did not put an immunity clause into the Constitution. They knew how to--There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president. And, you know, [that's] not so surprising. They were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?" she continued.
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During the justices questioning of John Sauer, lawyer for former President Trump, Chief Justice John Roberts questioned whether a bribe for ambassadorship should be considered an "official act" of a president.
"Well, if you expunge the official part from the indictment, how do you I mean, that's like a one legged stool, right?," Justice Roberts questioned.
"I mean, giving somebody money isn't bribery unless you get something in exchange. And if what you get in exchange is to become the ambassador of a particular country that is official. The appointment that's within the president's prerogatives, the unofficial part, I'm going to get $1,000,000 for it. So if you say you have to expunge the official pardon, how does that go forward?" he pressed.
Sauer replied, "what we say is virtually all the overt conduct is official. We don't believe it would be able to go forward. "
"I mean, there could be a case where it would But if you look at even the government's brief in this case divides up the indictment into things that, other than the electors allegations...they haven't disputed that they are official acts," Sauer said."But what they do is say, 'well, we tie it all together by characterizing it as done.' And these are the allegations the court just referred to by an improper private aim, or private end," Sauer continued," he continued.
"That's their words. And that just runs loggerheads, you know, dead set against this court's case law saying you don't look at what immunity determinations, the mode of improper motivation or purpose," Sauer added.
Supreme Court Justice Ketanji Brown Jackson asserted that every president in U.S. history has entered office with the understanding that they were potentially "under threat of prosecution" for their conduct.
Jackson went back and forth with Trump attorney John Sauer on the issue at the outset of the court's hearing on Trump's presidential immunity claim.
"When you were giving your opening statements, you suggested that the lack of immunity and the possibility of prosecution in the presidential context is like an 'innovation.' And I understood it to be the status quo," Jackson told Sauer. "I mean, I understood that every president from the beginning of time essentially has understood that there was a threat of prosecution if for no other reason than the the Constitution suggests that they can be prosecuted after impeachment or that the Office of Legal Counsel has said forever that presidents are amenable to a threat of prosecution and they have continued to function and do their jobs and do all the things that presidents do. So it seems to me that you are asking now for a change in what the law is related to immunity."
Sauer then responded: "I would quote from what Benjamin Franklin said at the Constitutional Convention, which I think reflects best the founders original understanding and intent here, which is at the Constitutional Convention. Benjamin Franklin said history provides one example only of a chief magistrate who is subject to public justice, criminal prosecution. And everybody cried out against that."
"No I understand. But since Benjamin Franklin, everybody has thought, including the presidents who have held the office, that they were taking this office subject to potential criminal prosecution. No?" Jackson pressed, going on to bring up the pardon for President Richard Nixon, which would suggest presidents could face prosecution.
"Well, he was under investigation for his private and public conduct at the time--official acts and private conduct. I think everyone has properly understood that the president since President Grant's carriage riding incident, everyone has understood that the president could be prosecuted [for private conduct]," Sauer responded.
Former National Enquirer publisher David Pecker returned to the witness stand as the seventh day of former President Trump's New York criminal trial began Thursday.
Pecker testified on Tuesday that he entered into an agreement with Trump and his then-lawyer, Michael Cohen, to assist Trump's 2016 presidential campaign. He said he agreed to publish positive stories about Trump and attempt to kill negative stories about him, going so far as to purchase stories from sources and not publish them, a practice known as "catch and kill."
In one instance, a Trump Tower doorman claimed he had information that Trump had impregnated a maid employed in the building. Pecker said the Enquirer purchased the story for $30,000, with no plans to publish it before Election Day. Pecker went on to say that an investigation found the story to be "1000% false."
Pecker is expected to testify about further examples of his partnership with Cohen throughout Thursday's proceedings.
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